DISSENTING OPINION OF JUDGE WOJTYCZEK

1. I respectfully disagree with the view that that the applicant’s extradition to the United States of America would not be in violation of Article 3 of the Convention.

2. I note, in particular, the following information provided by the US authorities (Letters from the Los Angeles County District Attorney’s Office, upon request of the US Department of Justice, dated 25 February 2022 and 30 August 2022 – see paragraph 33, emphasis added):

“(b) The court has discretion to dismiss the allegations about the two prior convictions if it finds there are reasons to do so ‘in the furtherance of justice’.

...

(d) If the applicant were convicted of all charges and sentenced under the Three Strikes Law he would face a sentence of life imprisonment, of which he would have to serve a minimum term of twenty-five years, for each of the charges of aggravated mayhem and torture. In addition, he would be sentenced to six years’ imprisonment on the charge of grand theft. The court could also impose an additional five-year prison sentence for the prior convictions alleged. Those sentences would run consecutively. Therefore, under this scenario the applicant would face a potential sentence of life imprisonment with eligibility for parole after sixty-one years.

(e) Once the minimum term of imprisonment is met, the applicant will be entitled to a hearing before a neutral body called the California Board of Parole Hearings (Parole Board) to determine if he is suitable for release. ”

3. The evidence concerning the Californian legal system, relied on by the majority, clearly shows that the applicant faces a potential sentence of life imprisonment with eligibility for parole after sixty-one years. The applicant faces therefore a potential sentence of life imprisonment which is de facto irreducible. Moreover, the review mechanism after sentencing (the second stage of the test established in Sanchez-Sanchez v. the United Kingdom [GC], no. 22854/20, 3 November 2022), even if it provides for a system of sentencing credits for good behaviour (see paragraphs 35(b) and 62), appears practically meaningless in the circumstances of the case.

4. The majority rely, in particular (see paragraph 61), on the argument that

“...the relevant provisions of the California Penal Code and other materials in the case also show that prosecutors and judges in California can exercise discretion in the application of the Three Strikes Law (see paragraphs 25, 33(b) and 35(c) above).”

Discretion is seen here as an advantage not as a threat. In my view, it is the discretionary nature of the decisions in this respect which makes the risk for the applicant real.

5. The majority further underline several times the high level of uncertainty concerning the outcome of the criminal proceedings against the applicant in the United States (see paragraphs 61, 62 and 63). This uncertainty means precisely that the risk is real. Real risk begins at a relatively low level of probability of an unfavourable outcome.

I note that the argument invoked fits almost any extradition case as there is necessarily uncertainty about the possible evolution and outcome of criminal proceedings.

6. To establish the content of the law of a State which is not party to the Convention is aways a very perilous exercise. It would be preferable to invite systematically the third States to submit their own observations and to allow them to effectively defend their legitimate interests in the proceedings before the Court. Moreover, the possible doubts concerning the operation of their legal system should, in principle, be interpreted in their favour.

I cannot exclude that the factual findings concerning the Californian legal system, made by the Court in the instant case, are incomplete or partly inaccurate and that there may be additional factors, not referred to by the Court, which would tip the balance in favour of allowing the extradition. However, in my view, the evidence concerning the legal system under consideration, gathered by the Court in the instant case, does not support the conclusions drawn by the majority.

7. To sum up: I fully understand the endeavour of the majority not to hinder the smooth functioning of extradition treaties with other Western States. The problem with the approach adopted in the instant case is that under this methodology the guarantees of Article 3 will lose any practical effect in the context of extradition proceedings.