Extradition and a possible life sentence: review and individual assurances

Torture and inhuman or degrading treatment or punishment are prohibited by Article 3 ECHR. A corresponding extradition safeguard concerning the enforcement of a sentence already imposed or expected is provided by Section 19 point 2 ARHG. The applicable extradition treaty must also be examined: under section 1 ARHG, divergent international agreements take precedence. Human rights protection must still be respected.

In Sanchez-Sanchez v. the United Kingdom of 3 November 2022, a two-stage assessment for a possible life sentence was developed by the Grand Chamber of the European Court of Human Rights. The first issue concerns the real risk of its imposition without parole, and the second concerns the review mechanism. The absolute prohibition in Article 3 ECHR cannot be balanced against the seriousness of the allegation.

Evidence showing substantial grounds for believing that there is a real risk of life imprisonment without parole in the event of conviction must be provided by the person concerned. That question is not answered by the statutory maximum alone. Included among relevant factors are the actual charges, mandatory sentencing provisions, judicial discretion, and sentencing practice in comparable cases.

The risk is easier to establish where a mandatory life sentence applies. Where sentencing is discretionary, careful explanation is required for personal circumstances, possible aggravating and mitigating factors, and differences from comparable cases. In Sanchez-Sanchez, the evidence failed at this first stage. Therefore, the Court did not reach a final assessment of the foreign review mechanism in that particular case.

Upon establishment of the real risk, the Austrian authorities are required to ascertain, prior to authorising extradition, the existence in the requesting state of a review mechanism in place from the moment of sentencing. That mechanism must permit the consideration of progress towards rehabilitation, conduct, or other relevant personal circumstances as grounds for release. It is not the case that an application for release must be possible on the day the sentence is imposed.

Not all the domestic procedural safeguards from Vinter are extended by Sanchez-Sanchez to third states. The older Trabelsi decision therefore cannot simply be repeated as the governing standard. Neither a general guarantee of release nor a rigid rule requiring review after 25 years in every extradition case is created by the judgment. An effective substantive prospect of release remains decisive.

The person, the request, and the potential penalty must be addressed by a reliable assurance. The full wording, the authority of the body giving the assurance, and its binding effect on the competent prosecuting and enforcement bodies are examined by the defence. Different legal effects arise from a mere expectation of a lenient sentence and a binding restriction on prosecution. From the documents, those effects must be identifiable.

This point is illustrated by McCallum v. Italy, a Grand Chamber decision notified on 3 November 2022. After a binding reduction of the charges, the request was amended and a new extradition order was issued. The applicant then faced at most life imprisonment with eligibility for parole. The Court considered the alleged risk removed. Any other assurance requires its own assessment of its terms and legal implementation.

Begin with the complete extradition request, the foreign indictment or judgment, and the applicable sentencing provisions. Current rules on parole, commutation or other review procedures, along with reliable information about their use, are also required. Comparable judgments must be comparable in their charges, personal history and sentencing factors. Unresolved issues can be clarified by expert advice on the foreign law.

A different purpose is served by an appeal addressing errors in a criminal judgment than by a later assessment of whether continued imprisonment remains justified. Likewise, a reference to clemency alone leaves the suitability of a mechanism unresolved. Examination is required for its legal conditions and practical operation. Provide assurances in full, with attachments and translations; crucial conditions may be concealed by shortened summaries.

Early in the judicial extradition admissibility proceedings under section 31 ARHG, the specific sentencing risk and gaps in review arrangements should be raised. The necessary supplementary material can be identified by the defence, which may also request an oral hearing. An appeal under section 31(6) ARHG has suspensive effect. Have the pronouncement, service, and appeal instructions checked immediately so that the appropriate remedy is pursued in time.

A valid basis of its own is also required for extradition detention under section 29 ARHG. Detention is not automatically ended by an objection to a possible life sentence. An established bar to extradition is, however, important to its purpose. Give the defence the current detention order, the time already spent in custody and any announced surrender date so that admissibility and detention protection can be coordinated.