19 March 2013
Prisoner transfer agreements – reverse refoulement?
Refoulement describes the act of removing a person to a country where he or she is in danger of being subjected to serious human rights violations. It is a well-established legal concept in refugee law as well as extradition law and codified in a range of treaties. As transpires from the recent case of Willcox and Hurford v the United Kingdom before the European Court of Human Rights, the reverse scenario may also be possible: the removal of a person from one country to another one, where the receiving country’s responsibility may be engaged on account of previous wrongful conduct in the transferring State.
The Court’s inadmissibility decision sets a human rights standard for the implementation of prisoner transfer agreements. On a more fundamental note, it raises the question whether and in what way the absolute character of Article 3 of the European Convention on Human Rights should allow for taking into account the generally beneficial purpose of Prisoner Transfer Agreements (or PTAs).
The case concerned two British citizens who had been convicted in Thailand to thirty-three years and twenty-six years’ imprisonment respectively for illegal drug possession. After having served part of their sentences in Thailand, they were transferred to the United Kingdom pursuant to a bilateral prisoner transfer agreement between Thailand and the United Kingdom. Having arrived in the UK, they challenged the further execution of their sentences, arguing that their continued detention was grossly disproportionate on account of its length (Article 3 ECHR) and arbitrary because they had agreed to a plea bargain to admit guilt that resulted in a higher term of sentence to be served in the UK; and because the trial in Thailand of one of the applicants would have been manifestly unfair (Article 5 § 1 ECHR).
Although prisoner transfer agreements have earlier been scrutinized by the ECtHR, pervious cases concerned either complaints against the transferring as opposed to the receiving State or complaints against the receiving State for imposing – due to divergent rules on the qualification and enforcement of sentences – a harsher penalty than the sentencing country (see Ciok v Poland and Giza v Poland). It therefore seems that the case of Willcox and Hurford is the first one in which the ECtHR is confronted with the scenario that the receiving State is bound, by virtue of a prisoner transfer agreement, to execute a sentence that may violate the European Convention on Human Rights.
The political issue underlying the case is of course that in concluding Prisoner Transfer Agreements, many countries – Thailand included – do so under the express conditions that the legal nature and duration of the sentence are respected by the receiving State. Any ruling of the ECtHR that would compel European States to commute the sentence could therefore jeopardize the whole system of PTAs – which themeselves are clearly directed at promoting and respecting fundamental rights of prisoners.
The Court frames its examination of the Article 3 complaint very much as a choice between two evils. The greater evil would have been not to execute the transfer, resulting in the applicants being left in detention in a remote country in far inferior and possibly degrading conditions. The lesser evil was to allow the prisoners to serve their sentence in the UK in more humane conditions, albeit for a duration that might be four or five times as long as the sentence they would likely have received for the same offences in the UK.
The Court considers therefore, that a different standard applies than in ordinary refoulement-cases:
The Court emphasises that different considerations arise in cases in which a Contracting State is asked to refuse extradition to a jurisdiction where a grossly disproportionate sentence might be imposed; and in cases where that same State is confronted with a request by a prisoner for transfer to serve a sentence imposed by a foreign court that might have been considered grossly disproportionate had it been assessed in the context of a prior extradition request. In the former case, it is within the State’s power to prevent the offending sentence being imposed. In the latter, the sentence has been imposed and might have to be served in harsh and degrading conditions, subject to limited early release provisions. When considering the degree of humiliation or suffering inherent in the impugned acts, it is necessary to have regard to the degree of humiliation or suffering inherent in the alternative option. It would in the Court’s view be paradoxical, and anathema to its obligation to interpret and apply the Convention rights in a manner that renders the guarantees practical and effective and not theoretical and if the protection afforded by Article 3 operated to prevent prisoners being transferred to serve their sentences in more humane conditions (para. 75).
The Court does not exclude that Article 3 may raise an issue in this type of cases but sets the threshold high: “the focus must be on whether any suffering and humiliation involved go beyond that inevitable element of suffering or humiliation connected with the enforcement of the sentence of imprisonment imposed by the foreign court” (para. 76).
The Court thus regards the sentence imposed by Thailand as ‘inevitable’ and appears to suggests that the Article 3 examination should be restricted to verifying whether the enforcement by the UK goes, in terms of inhuman or degrading treatment, beyond that in Thailand. In applying this test however, the Court also notes that the sentences are not disproportionate in view of sentences for similar offences imposed in Thailand, that they fall within the maximum permitted sentences for equivalent offences in the UK, that Thailand has good reasons for severely punishing drug offences, that both applicants had themselves requested to be transferred and that they are eligible for more early conditional release in the UK than in Thailand. Although this leaves the exact test to be applied to this type of cases somewhat obscure, it is clear from the Court’s appreciation that its ordinary case law on the length of detention under Article 3 (as applied in a purely domestic context or that of extradition) does not apply and that considerable attention must also be paid to the very rationale of these kind of transfers.
This, of course, questions the absolute character of Article 3. The Court could also have reasoned that the implementation of the bilateral agreement by and in the UK is fully attributable to the UK and therefore subject to the Court’s ordinary standard of review (cf. Al-Saadoon and Mufdhi v the United Kingdom, para. 128). Moreover, since the two applicants had already been transferred to the UK, their individual interests as protected under the PTA would not have been put in jeopardy by a full Article 3 review. In this respect, the Court’s justification for its approach in the final sentence of para. 75 (“it would be paradoxical if the protection afforded by Article 3 operated to prevent prisoners being transferred”) is somewhat misplaced, as the UK judicial review proceedings were conducted after the transfers had been executed. What the Court appears to suggest, rather, is that it must balance the applicants’ rights under Article 3 with the more general interest of all prisoners who might benefit from PTAs.
A similar balancing act is conducted by the Court in its examination under Article 5 ECHR. In respect of Mr. Willcox’s argument that his trial in Thailand was flagrantly unfair because of the “irrebutable presumption” in Thai law that anyone who posesses 20 grams of heroin or more must be regarded as a drug dealer and is therefore susceptible to a considerably longer sentence, the Court holds that the receiving country is not obliged to comprehensively scrutinize the trial in the transferring State. Here, the Court could rely on its earlier judgment in Drozd and Janousek v Spain, concerning the execution by Spain and France of sentences that had been delivered by an Andorran Court. In that case, as well as in ordinary refoulement/extradition cases (e.g. Othman), the Court applied the “flagrant denial of justice test”, holding that cooperation must only be refused if the trial in the other country was (or will be) manifestly unfair. The Court considers that this threshold is not met, because even though Mr. Willcox’s defence rights were compromised, his trial was overall conducted under fair circumstances.
Presumably, the Court considers the “flagrant denial of justice”-test sufficiently stringent to balance out the more general interest of prisoners under PTAs. The test at the least imposes some duty on the receiving State to not blindly accept prisoners from another country. It is however a marginal duty, which the Court justifies by considering that “international cooperation in the administration of justice … is in principle in the interests of the persons concerned” – the formula earlier used in Drozd and Janousek. Thus, as under Article 3, the general interest of justice may outweigh those of individuals. That this is the correct approach is not at all self-explanatory, as the Drozd and Janousek judgment was at the time adopted by the smallest majority possible (twelve votes to eleven). It has now been unanimously endorsed.
The decision gives further food for thought for ongoing discussions on how absolute Article 3 of the ECHR actually is (see e.g. here). It may also be received as a further chapter in the Court’s ‘doctrine of deference’ to forms of international cooperation that may serve ostensibly higher aims, such as in the sphere of the EU or the effectuation of Security Council resolutions (see here, here and the replies here). Although the Court did not refer to the judgment, an analogy in this respect can further be made with its earlier judgment in Sari v Turkey and Denmark, concerning the length of criminal proceedings which were consecutively instituted in Denmark and Turkey against a Turkish national for crimes committed in Denmark. Mr. Sari complained that the criminal proceedings were not settled within reasonable time: eight years, seven months and twenty-two days had lasted between the indictment by a Danish Court and the sentence delivered by the Turkish Court. Although the Court held the length of the proceedings to fall under the ‘joint responsibility’ (‘la responsabilité conjointe’) of Denmark and Turkey, the Court did not find a violation of Article 6 on the part of either State. The Court reasoned that the delays could not be attributed to either State, because they resulted, rather, from “a system of mutual assistance under which the requesting State is dependent on the co-operation of the other State” (para. 92, French only).