The powerful presence of human rights ideology since World War II brought a visible impact on extradition. The subject of extradition, namely the individual sought to be extradited, received very limited focus for a long time. The new dynamics of extradition with a human rights orientation began to cast special focus on the individual. Although not all human rights represent obstacle for extradition, the right ‘not to be subjected to torture’ represents an absolute bar and a reason to reject extradition requests.
The practice of refusing international extradition requests on the ground of possible human rights violations has become regular in international law, although it must be acknowledged that it depends on the nature of the case and the discretion of a state. Governments and international institutions have become aware of human rights and the need to protect them, especially in circumstances when the prohibition against torture has been engaged.
Prohibition against torture as an obstacle for extradition
The most extensive and detailed international case-law in regards to the prohibition against torture and other cruel treatment is based on Article 3 of the European Convention on Human Rights (ECHR) and has been explained in details and developed by the European Court of Human Rights and the former European Commission of Human Rights.
Protection against torture and inhuman or degrading treatment or punishment is an absolute right which presents an obstacle for extradition. In that sense, there is no doubt that Article 3 of the ECHR directly applies to a possible extradition of a fugitive/criminal offender. In Western Europe this is clear from the consistent case law of the former European Commission since the early 1960s and is now explicitly included in various international instruments and in many modern extradition treaties in the form of the discrimination clause. These discrimination clauses are primarily concerned with the risk of persecution or prejudice in the context of the criminal prosecution or punishment awaiting the fugitive upon surrender.
In view of the existence of these instruments, the question arises whether it is at all necessary to invoke Article 3 of the ECHR, as extradition could be refused on the basis of these instruments. The problem here is that not all States are parties to the said instruments and not all extradition treaties contain the discrimination clause; if this is the case, then ECHR may serve as the legal basis for refusal.
Great numbers of cases have raised the question of the distinction between, on the one hand torture and, on the other hand, inhuman or degrading treatment. It may be argued that this distinction is of minor importance, since Article 3 prohibits all treatments. Nevertheless, many Governments would consider much more serious stigma to be attached to torture rather than inhuman or degrading treatment.
Regarding the above mentioned, Article 3 has often been invoked in cases of expulsion or extradition to a state where the expelled or extradited person may be exposed to certain risks. In the case of Soering v. the United Kingdom (No.14038/88 of the ECtHR), the ECtHR brought a landmark decision engaging for the first time a State’s responsibility if it extradites a person who will be subjected to a real risk of ill-treatment. Further, the Court in the case of Trabelsi v.Belgium (No.140/10 of the ECtHR); the case of Klein v.Russia (No.24268/08 of the ECtHR); the case of Ismailov v. Uzbekistan (No.20110/13 of the ECtHR) and the case of Aswat v. the United Kingdom (No.62176/14 of the ECtHR), found a violation of Article 3 when extradition is not compatible with a person’s human rights as determined by the ECHR.
In almost every case where the question of possible violations of Article 3 have been raised, extradition had not yet taken place and the Court and the Commission were asked to establish whether the transfer of the person to a specific country would violate Article 3. However, it must be mentioned that there are also some cases where the question of possible violation of Article 3 has been raised after extradition happened. For example, the Amekrane case (No.5961/72 of the European Commission) concerned a Moroccan officer who had fled from Morocco to Gibraltar after an aborted coup and who was returned to British authorities. Back in Morocco, allegedly tortured and then executed, despite guarantees given to the British authorities that Amekrane would not be executed.
In the case of Mamatkulov and Abdurasulovic v.Turkey (Application No. 46827/99 and 46951/99 of the ECtHR), the applicants complained that following their extradition from Turkey to Uzbekistan their lives had been at risk and in danger of being subjected to torture. The complaint also related to the unfairness of Turkish extradition proceedings and criminal proceedings in Uzbekistan. The Court stated that while States have the right to control the entry, residence and expulsion of aliens, States may incur responsibility where substantial grounds exist for believing that a person would face a real risk of being subjected to treatment which is contrary to Article 3. However, what is interesting about this case is the fact that the ECtHR did not found violation of Article 3 of the ECHR, but found violation of Article 34 of the ECHR (admissibility of individual applications).
Identifying the elements of torture
In relation to the topic of torture and what constitutes torture according to the international conventions, the case of Ireland v. United Kingdom ((5310/71)  ECHR 1) from 1978 is relevant. Although it does not include extradition, the case gives an important definition of torture and shows the conflicted opinion of the Court and the Commission. The case concerned primarily five techniques which had been used in connection with the interrogation of suspected terrorist in Northern Ireland. These techniques were described in the Court’s judgment as follows:
- Wall-standing – forcing the detainees to remain for periods of some hours in a stress position, described by those who underwent it as being spread-eagled against the wall…;
- Hooding – putting a black or navy colored bag over the detainees heads and at least, keeping it there all the time except during interrogation;
- Subjection to noise – pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;
- Deprivation of sleep – pending their interrogations, depriving the detainees of sleep;
- Deprivation of food and drink – subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.
The Commission considered that the use of these methods constituted torture, but the Court did not agree. The Court first pointed out that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The Court added that the assessment of this minimum is relative; it depends on all circumstances of the case, such as the duration of the treatment, its physical or mental effects etc. Hence, it can be concluded that a violation of Article 3 does not always entail the procedure of extradition of a fugitive from the requested to the requesting state. There are occasions when torture and physical and ill treatment constitute a single element without the involvement of extradition as a judicial procedure.
Prohibition of torture, just as it is explained and written in Article 3 of the ECHR represents an absolute bar to extradition, because it violates one of the most guaranteed human rights and incurs consequences for states that do not respect this right.
This article has explained the importance of the human right ‘not to be subjected to torture’ in extradition proceedings and at the same time identifying that states do not want to extradite fugitive/criminal offenders who can be subjected to torture or to inhuman and degrading treatment.
In that sense, it must be emphasized that states are becoming aware that in specific circumstances possible violation of human rights should be prevented rather than cured.
In recent years, we have been faced with devastating reports about grave breaches of human rights, especially committed in the process of extradition. The increased number of cases before the ECtHR where Article 3 as jus cogens has been concerned is a clear indicator that basic human rights are not respected in the manner that they should be. The main task is to prevent possible violations, because the process of curing them is a long and exhausting and the result is not always successful; sometimes it leaves wounds that cannot be healed easily.