26 June 2007

FOURTH SECTION
Application no. 24027/07
by Babar AHMED and Haroon Rashid ASWAT
against the United Kingdom
lodged on 10 June 2007

STATEMENT OF FACTS
THE FACTS
The applicants, Mr Babar Ahmed and Mr Haroon Rashid Aswat, are British nationals. Their dates of birth have not been provided. Mr Ahmed is currently in detention at HM Prison Woodhall, Milton Keynes; Mr Aswat at HM Prison Strangeways, Manchester. They are represented before the Court by Ms G Peirce, a lawyer practising in London with Birnberg Pierce and Partners, Solicitors.
A.  The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Extradition proceedings against Mr Ahmed
On 28 July 2004, the United States District Court for the District of Connecticut issued a criminal complaint against the first applicant, Mr Ahmed, and a warrant for his arrest. The offences specified in the warrant included material support of terrorism, prohibited support of the Taliban, conspiracy to kill persons in a foreign country, money laundering, solicitation and conspiracy. On 6 October 2004 a federal grand jury sitting in Bridgeport, Connecticut returned an indictment against the first applicant alleging the commission of four felonies between 1997 and August 2004: conspiracy to provide material support to terrorists; providing material support to terrorists; conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country; and money laundering.
The first applicant was arrested in London on 5 August 2004 on the basis of an arrest warrant issued under section 73 of the Extradition Act 2003 (see relevant domestic and international law below).
The first applicant’s extradition hearing started on 2 March 2005. It was adjourned to 18 April 2005 so as to allow the first applicant to call evidence, inter alia, on the question whether his extradition would be compatible with his Convention rights.
On 23 March 2005, the United States Embassy in London issued Diplomatic Note No. 25. The note provides as follows:
“The Embassy of the United States of America at London, England, presents its compliments to Her Majesty’s Principal Secretary of State for Foreign and Commonwealth Affairs and has the honor to refer to Note No. 100 dated November 15, 2004, requesting the extradition of Babar Ahmad to the United States of America...
Pursuant to Article IV of the Extradition Treaty Between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States hereby assures the Government of the United Kingdom that the United States will neither seek the death penalty against, nor will the death penalty be carried out, against Babar Ahmad upon his extradition to the United States.
The Government of the United States further assures the Government of the United Kingdom that upon extradition to the United States, Babar Ahmad will be prosecuted before a Federal Court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges.
Pursuant to his extradition, Babar Ahmad will not be prosecuted before a military commission, as specified in the President’s Military Order of November 13, 2001; nor will he be criminally prosecuted in any tribunal or court other than a United States Federal Court; nor will he be treated or designated as an enemy combatant...”
At the resumption of the extradition hearing, the applicant argued, inter alia, that the risk of the death penalty being imposed remained since he could be tried on a superseding indictment. He further argued that he remained at risk of being designated as an ‘enemy combatant’ pursuant to Military Order No. 1 (see relevant domestic and international law below) and that he remained at risk of extraordinary rendition to a third country. He also argued that there was a substantial risk that he would be subjected to ‘Special Administrative Measures’ whilst in detention on remand in a Federal Prison. He argued that these measures could involve solitary confinement and restrictions on communication with his legal representatives in violation of Articles 3 and 6 of the Convention.
In a decision given on 17 May 2005, the Senior District Judge, ruled that the extradition could proceed and that, inter alia, the first applicant’s extradition would not be incompatible with his rights under the Convention.
In respect of the applicant’s argument in respect of the risk of the death penalty being imposed, the District Judge held as follows:
“As far as the Civilian Courts are concerned, I have the assurance of the Prosecutor that there is no intention to prefer a superseding indictment or amend the charges to include matters which would render the defendant liable to the death penalty. I have also been provided with Diplomatic Note 25 which gives a categorical assurance that the death penalty will not be carried out. I have reached the conclusion that the risk of this being imposed by a Civilian Court is negligible and the court is entitled to rely on the Prosecutor’s undertaking and the Diplomatic Note.”
As to the applicant’s arguments in respect of the risk of designation as an enemy combatant and the risk of extraordinary rendition, the District Judge held:
“I am satisfied that the defendant meets the criteria which would permit the President of the United States of America to personally make an order designating the defendant as an enemy combatant who could then be detained and tried by a military tribunal. If such an order were made there is a substantial risk that the defendant would be detained at Guantanamo Bay or subjected to rendition to another country....I have had to consider the status of [the] Diplomatic Note. I am satisfied whilst it does not provide any personal protection to this defendant; the Diplomatic Note does bind the American Government, which includes the President of the United States. As such I am satisfied that the risk of an order being made under Military Order No. 1 is almost entirely removed. Although I have received evidence of extraordinary rendition to another State, the [United States] Government denies that such action takes place. If such steps do take place I am satisfied that in this case, in light of the Undertaking not to invoke Military Order No. 1, the risk of extraordinary rendition is negligible.”

In considering the applicant’s arguments relating to the risk of special administrative measures, the District Judge noted that the United States Government had not attempted to deny that special administrative measures could be applied but had argued that there was judicial control to see that communication passing between the defendant and his lawyers, although monitored, did not reach the prosecution. The District Judge concluded as follows:
“It is in relation to the application of special administrative measures that I find the greatest grounds for concern. However, examining the measures against the safeguards, I have concluded that a trial could still be properly and fairly conducted without breach of Article 6 of the Defendants’ Convention Rights.”
Having concluded that none of the bars to extradition applied, the District Judge sent the case to the Secretary of State for his decision as to whether the first applicant should be extradited.
On 15 November 2005, the Secretary of State ordered his extradition. The applicant appealed to the High Court (see below).
2. Extradition proceedings against Mr Aswat

On 7 August 2005 the second applicant was arrested in the United Kingdom, also on the basis of an arrest warrant issued under section 73 of the Extradition Act 2003, following a request for his provisional arrest by the United States. He is wanted to stand trial in the United States District Court for the Southern District of New York on the basis of a federal grand jury indictment concerning a conspiracy to establish a jihad training camp in Bly, Oregon. It appears from the file that a principal prosecution witness is a Mr Ujaama, a United States National. Mr Ujaama was charged but entered into a plea agreement. It is alleged by the second applicant that Mr Ujaama was coerced into providing evidence against Mr Aswat by the threat of being sent to the United States’ detention facility at North Carolina brig. In addition, it appears that subject to the plea agreement, the United States Government agreed to lift the special administrative measures to which Mr Ujaama had been subjected. It further appears that in the plea agreement, the United States agrees to forego any right it has to detain him as an enemy combatant.
On 20 December 2005, in the course of the second applicant’s extradition hearing, the United States Embassy issued Diplomatic Note No. 114 which provides as follows:
“The Government of the United States assures the Government of the United Kingdom that upon extradition to the United States, Haroon Rashid Aswat will be prosecuted before a Federal Court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges. Pursuant to his extradition, Haroon Rashid Aswat will not be prosecuted before a military commission, as specified in the President’s Military Order of November, 13, 2001; nor will he be criminally prosecuted in any tribunal or court other than a United States Federal Court; nor will he be treated as an enemy combatant.”
In a decision given on 5 January 2006, the Senior District Judge, ruled that the extradition could proceed and that, inter alia, the second applicants extradition would not be incompatible with his rights under the Convention. Referring to his findings in the case of the first applicant, he similarly found that the risk of an order being made under Military Order No. 1 was removed by the Diplomatic Note. He also found that despite the risk of special administrative measures, the second applicant’s trial could be properly and fairly conducted without a breach of his Article 6 rights. As to the second applicant’s submission that the use of evidence from Mr Ujaama would breach his right to a fair trial, the District Judge concluded:
“In the absence of evidence from Mr Ujaama himself as to his state of mind when he entered this plea agreement it is impossible to say whether his continuing cooperation was obtained by threat of either Special Administrative Measures or indefinite detention as an enemy combatant. There is, however, clearly an issue which would have to be resolved at any trial in the United States as to whether the evidence was admissible or whether it should be excluded on the basis of duress. That must be the responsibility of the trial court. It may be that this evidence would not be admitted but the evidence which goes before a jury in the United States must be an issue for the trial court and not for this court. I am satisfied that the evidence of Mr Ujaama would not in itself violate Mr Aswat’s rights under Article 6 of the European Convention.”
Having concluded that none of the bars to extradition applied, the District Judge sent the case to the Secretary of State for his decision as to whether the second applicant should be extradited.
On 1 March 2006, the Secretary of State ordered his extradition. The applicant appealed to the High Court.

3. The applicants’ appeals to the High Court

The applicants’ appeals were heard together. In its judgment of 30 November 2006, the High Court rejected their appeals.
With regard to the applicants’ submission that in any trials in the United States it was inevitable that evidence obtained by torture or inhuman treatment would be used against them, the High Court found that it could not know what precisely the evidence would be and thus it could not know in what particular circumstances it might have been obtained. In the absence of such information it was not prepared to hold that it would be distinctly obtained by torture, so that the process against the appellants would be tainted in violation of Article 6 of the Convention. The High Court distinguished between torture and other forms of ill-treatment and concluded as follows:
“[While] it is common ground that the law of evidence in federal criminal cases in the United States does not generally contemplate the exclusion of testimony on the basis that it has a tainted source, we may reasonably suppose that the court would arrive at a proper decision upon any submission made to it that particular evidence should be excluded by force of Article 15 of the Torture Convention.... the court would no doubt be amenable to argument that the weight to be accorded to any particular evidence was greatly lessened, perhaps extinguished, by virtue of its having been obtained by other forms of ill-treatment.”
In respect of the second applicant’s submission regarding the possible use of evidence from Mr Ujaama, the High Court held that even if Mr Ujaama had been threatened with special administrative measures and with indefinite detention, this fell short of a finding that he had in fact been subjected to cruel, inhuman or degrading treatment.
On the alleged risk that the applicants would be designated as enemy combatants under Military Order No. 1, the High Court held the diplomatic notes bound the United States Government and could be relied upon. As to the scope of the notes, the court found that the specialty rule, by which an extradited person could only be tried in the requesting state for the crime or crimes for which he had been extradited, provided adequate safeguards against such a designation. This was contained in Article XII the 1972 UK – USA Extradition Treaty (see relevant domestic and international law below) and it was to be presumed that the United States would be loyal to its treaty obligations.
On the alleged risk of extraordinary rendition, the High Court found no evidence that any person extradited to the United States from the United Kingdom or anywhere else had been subsequently subjected to extraordinary rendition.
On the alleged risk that the applicants would be subjected to special administrative measures, it found that, according to the case-law of this Court, solitary confinement did not in itself constitute inhuman or degrading treatment. On the conformity of the measures with Article 6 of the Covnention, it found that the imposition of such measures was subject to judicial scrutiny and that the rights of the accused guaranteed by the Sixth Amendment to the Constitution provided sufficient safeguards to protect lawyer/client privilege.
The applicants applied for permission to appeal to the House of Lords. This was refused by the House of Lords on 6 June 2007.
B.  Relevant domestic and international law
1. Relevant public international law and domestic law
a. Extradition treaty between the United Kingdom and the United States

At the material time, the applicable bilateral treaty on extradition was the 1972 UK – USA Extradition Treaty (now superseded by a 2003 treaty). Article XII of the 1972 treaty guaranteed compliance with the specialty rule, the requirement that an extradited person may only be tried in the requesting State for the crime or crimes for which he has been extradited. This provides as follows:
“(1) A person extradited shall not be detained or proceeded against in the territory of the requesting Party for any offense other than an extraditable offense established by the facts in respect of which his extradition has been granted, or on account of any other matters, nor be extradited by that Party to a third State –
(a) until after he has returned to the territory of the requested Party; or
(b) until the expiration of thirty days after he has been free to return to the territory of the requested Party.
(2) The provisions of paragraph (1) of this Article shall not apply to offenses committed, or matters arising, after the extradition.”
b. Extradition Act 2003

Part II of the Extradition Act 2003 regulates the extradition of individuals to ‘category 2’ territories which, by designation of the Secretary of State, includes the United States. Pursuant to sections 71(4), 73(5), 84(7) and 86(7) of the Act, the Secretary of State has the power to designate certain States are not being required to provide prima facie evidence in support of their requests for extradition. By Article 3 of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (Statutory Instrument 2003 No. 3334) this includes, inter alia, the United States. Article 2 of the same order designates the United States as a ‘category 2’ territory.
Section 73 of the Extradition Act 2003 provides for the issue of a provisional warrant of arrest if certain conditions are satisfied. Section 87 requires the judge at the extradition hearing to decide whether a person’s extradition would be compatible with Convention rights within the meaning of the Human Rights Act 1998. Section 103 provides for the right of appeal to the High Court against the decisions of the judge and against an order for extradition made by the Secretary of State. Section 114 provides for a further appeal to the House of Lords from the High Court.

c. The United Nations Convention Against Torture
The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by General Assembly Resolution 39/46 of 10 December 1984 and entered into force 26 June 1987. The United Kingdom and the United States have both ratified the Convention. The Convention provides as follows:

Article 1
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Article 15
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
Article 16
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.

2. Relevant law of the United States of America
a. Military Order No. 1

On 13 November 2001 the President of the United States of America issued Military Order No. 1 on the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”. The Military Order applies to non-citizens of the US with respect to whom there is reason to believe that they are members of Al-Qaeda or have aided and abetted acts of international terrorism (section 2 of the Order, referred to as designation as enemy combatants). Any individual subject to the Order shall be detained at an appropriate location designated by the Secretary of Defence outside or within the United States (section 3 of the Order). They shall, when tried, be tried by military commission for any and all offences triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death (section 4 of the Order). Military tribunals shall have exclusive jurisdiction with respect to offences committed by such persons, who shall not be privileged to seek any remedy in any court of the United States, any court of any foreign nation, or any international tribunal (section 7 of the Order).
COMPLAINTS
The applicants complain that there would be violations of Articles 2, 3, 5, 6, 8 and 14 Convention if they were extradited to the United States.
In particular they allege that they would be at real risk of being designated as enemy combatants at the conclusion of the criminal proceedings pending against them in violation of Articles 3, 5 and 6 of the Convention. In this respect, the first applicant further alleges that he would be at real risk of being subjected to the death penalty in violation of Article 2. Both applicants also allege that there would be a real risk of them being subjected to extraordinary rendition in violation of Articles 3, 5 and 6 of the Convention. They also complain that there is there a real risk that they would be subjected to ‘special administrative measures’ in violation of Articles 3 and 6. Finally, they allege that if extradited there is a real risk of a flagrant denial of justice in violation of Article 6 § 1 of the Convention due to the possible use at their trial of evidence obtained by treatment or threat of treatment of a third party, contrary to Article 3 of the Convention.
QUESTIONS TO THE PARTIES

Would there be a violation of Articles 2, 3, 5 and 6 of the Convention if the applicants were to be extradited to the United States? In particular:

1.  Are the terms of the diplomatic notes sufficient to remove any risk that the applicants would be designated as ‘enemy combatants’ pursuant to Military Order No. 1 at the conclusion of the criminal proceedings currently pending against them? If not, would such a designation give rise to a real risk of a violation of Articles 3, 5 or 6 of the Convention? In this regard, what, if any, significance is to be attached to the use of the different terms “upon extradition” and “pursuant to his extradition” in the diplomatic notes?

2.  Would the extradition of the applicants be compatible with Articles 3, 5 and 6 of the Convention in circumstances where the United States has not undertaken that they will not be subjected to rendition or extraordinary rendition?

3.  Is there a real risk that the Mr Ahmed would be subjected to the death penalty if charged on a superseding indictment or as a consequence of a trial before a Military Commission at the conclusion of the criminal proceedings against him in violation of Article 2 when taken with Article 6 of the Convention (see Öcalan v. Turkey [GC], no. 46221/99, §§ 166-175, ECHR 2005‑...)?

4.  Is there a real risk that the applicants would be subjected to ‘special administrative measures’? Would such measures be compatible with Articles 3 and 6 of the Convention?

5.   In the determination of the criminal charges against the applicants, is there a real risk of a violation Article 6 § 1 of the Convention? In particular, in respect of Mr Aswat, would there be a violation of Article 6 § 1 if evidence obtained by treatment or threat of treatment of a third party contrary to Article 3 of the Convention was used at his trial (Jalloh v. Germany [GC], no. 54810/00, §§ 103-108, ECHR 2006‑...)? The Government are requested to submit a copy of the plea agreement between the United States Government and Mr Ujaama.

6.  The Government are further requested to clarify whether, in the case of Mr Ahmed, the imposition of a life sentence without any possibility of early release on parole would be likely in the event of his conviction and, if so, whether that would be consistent with the requirements of the above provisions (see Nivette v. France (dec.), no. 44190/98, ECHR 2001-VII and Einhorn v. France (dec.), no. 71555/01, ECHR 2001 XI).

The parties are request to comment on the relevance, if any, of the Court’s decision in Al-Moayad v. Germany (dec.), no. 35865/03, 20 February 2007.