Mustafa Kamal MUSTAFA v the United Kingdom - 36742/08 [2008] ECHR 970 (18 September 2008)

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Application no. 36742/08
by Mustafa Kamal MUSTAFA
against the United Kingdom
lodged on 1 August 2008

The applicant is stateless, having been deprived of his British nationality in 2003 and his Egyptian nationality in the 1980s. He was born in 1958 in Egypt and became resident in the United Kingdom. He is currently detained at HM Prison Belmarsh. He is represented before the Court by Ms M. Arani, a lawyer practising in London.

1. The designation of the applicant by the United States Department of Treasury

On 23 September 2001, the President of the United States of America signed Executive Order 13224 entitled “blocking property and prohibiting transactions with persons who commit, threaten to commit, or support terrorism”. On 19 April 2002, the United States Department of Treasury designated the applicant as coming under the terms of that order and accordingly blocked any assets he had in the United States. The accompanying press release stated:

“Abu Hamza al-Masri identifies himself as the Legal Officer for the Islamic Army of Aden, the terrorist organization that claimed credit for the bombing of the USS Cole in Yemen. The President designated the Islamic Army of Aden as a financier of terrorism when he launched the financial war on terrorism on September 24, 2001. In written statements, Hamza seeks support and backing for jihad against the Yemeni regime and the return to Islamic law. The Islamic Army of Aden has taken responsibility for the kidnapping of foreigners, including the kidnapping of 16 tourists in December of 1998, that resulted in the killing of three Britons and one Australian. In interviews, Hamza has endorsed the killing of non-Muslim tourists visiting Muslim countries.”

On 19 April 2004, a Federal Grand Jury sitting in the Southern District of New York returned a criminal indictment against the applicant, charging him with eleven different counts of criminal conduct. These cover three sets of facts. The first group of charges relate to the taking of sixteen hostages in Yemen in December 1998, four of whom died during a rescue mission conducted by Yemeni forces. Counts one and two charge the applicant with conspiracy to take hostages and hostage taking and relate principally to his contact with the leader of the hostage takers, Abu Al Hassan, before and during the events in question.

The second group relates to a conspiracy to establish a jihad training camp in Bly, Oregon between June 2000 and December 2001. Counts three to six charge the applicant with providing and concealing material support and resources to terrorists and a foreign terrorist organisation and conspiracy thereto. The third group relates to the conduct of violent jihad in Afghanistan in 2001. The indictment alleges that the applicant provided material and financial assistance to his followers and arranged for them to meet Taliban commanders in Afghanistan. In this respect, counts seven to ten also charge him with providing and concealing material support and resources to terrorists and a foreign terrorist organisation and conspiracy thereto. Count eleven charges him with conspiracy to supply goods and services to the Taliban.

After the United States requested the applicant’s extradition (see below) a superseding indictment was returned which named and indicted Oussama Abdullah Kassir and Haroon Rashid Aswat as the applicant’s alleged co-conspirators in respect of the Bly, Oregon charges. The superseding indictment contains nineteen counts and includes further charges against Mr Kassir only (counts seven to fourteen of the superseding indictment). The charges against the present applicant were not substantially affected by the superseding indictment but were partially renumbered: the Yemen charges remained counts one and two and the Bly, Oregon charges remained counts three to six; the Afghanistan charges were renumbered counts fifteen to nineteen.

Mr Kassir was extradited to the United States from the Czech Republic. The United States requested Mr Aswat’s extradition from the United Kingdom on 29 July 2005. He sought to challenge his extradition in the United Kingdom courts in the same proceedings as Mr Babar Ahmad, whose extradition is sought by the United States on separate charges. At the conclusion of those proceedings, Ahmad and Aswat lodged an application before this Court (no. 24027/07). On 12 June 2007 the Acting President of the Chamber to which that application was allocated decided to apply Rule 39 of the Rules of Court and indicate to the Government of the United Kingdom that the applicants should not be expelled until further notice; they remain in detention in the United Kingdom (see the statement of facts prepared in respect of that application).

It appears from the file that a principal prosecution witness in relation to the Bly, Oregon and Afghanistan charges is James Ujaama, a United States national, who was originally indicted as a co-conspirator in respect of those charges. It is alleged that the present applicant arranged for Mr Ujaama to travel to Afghanistan with another original co-conspirator, Feroz Abassi, and to meet a Taliban commander with the purpose of participating in violent jihad. Mr Abassi was captured in Afghanistan, detained there and then transferred to Guantanamo Bay, Cuba. He was later returned to the United Kingdom. Mr Ujaama subsequently entered into a plea agreement. It is alleged by the present applicant (and Mr Aswat in his application) that Mr Ujaama was coerced into providing evidence 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 agreed to forego any right it has to detain him as an enemy combatant.

For the Yemen charges, several of the hostage takers were tried in Yemen in May 1999. Of the convicted defendants, Abu Al Hassan and two others were sentenced to death and a fourth to twenty years’ imprisonment. The execution of Abu Al Hassan took place on 17 October 1999. In 1999 investigations also took place simultaneously in the United Kingdom and the United States. In the course of the British investigation, the applicant was arrested and interviewed between 15 and 18 March 1999. Officers from the Metropolitan Police also flew to Yemen to conduct inquiries. One of the hostages, Mary Quinn, was also interviewed by the Federal Bureau of Investigations and detectives from Scotland Yard. The British investigation then concluded that while links between the applicant and the hostage takers were established, evidentially the links proved inconclusive and relied heavily on information gathered from Yemeni sources which would not ordinarily be admissible during a British trial. It also appears that no further action was taken in the American investigation at this time. Then on 22 October 2000, Ms Quinn recorded an interview with the applicant in London and, when this became available to the FBI in 2003, the American investigation recommenced, leading to the applicant’s indictment as set out above.

Pursuant to the Federal Grand Jury indictment, the United States requested the applicant’s extradition on 21 May 2004 and he was arrested in London on 27 May 2004 on the basis of an arrest warrant issued under section 71 of the Extradition Act 2003 (see relevant domestic and international law below).

On 20 July 2004, the United States Embassy in London issued Diplomatic Note No. 57. The note provided 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 Embassy’s Note 028, dated May 21, 2004, requesting the extradition of Mustafa Kamel Mustafa, aka Abu Hamza. The Embassy also refers to letter dated 23 June 2004 from the Home Office to the U.S. Department of Justice requesting the assurance that a sentence of death will not be imposed, or, if imposed, will not be carried out against Abu Hamza if he is extradited to the United States.

Pursuant to Article IV of the Extradition Treaty, Protocol of Signature and Exchange of Notes Between the United States and the United Kingdom of June 8, 1972, 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, Mustafa Kamel Mustafa, aka Abu Hamza, upon his extradition to the United States.”

The extradition proceedings were adjourned when the applicant was convicted of offences in the United Kingdom and sentenced to seven years’ imprisonment; they resumed when the criminal appeals process was concluded.

When the extradition proceedings resumed, the United States Embassy issued a further diplomatic note (no. 017) which is dated 9 May 2007 and where relevant stated:

“The Government of the United States assures the Government of the United Kingdom that upon extradition to the United States, Mustafa Kamel Mustafa, aka Abu Hamza, 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, Mustafa Kamel Mustafa, aka Abu Hamza, will not be prosecuted before a military commission, as enabled by the Military Commissions Act of 2006; 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.”

When the case came before the District Court for its decision as to whether the extradition could proceed, the applicant requested that the court make further enquiries of the Government of the United States, submitting that the extradition request was based on evidence directly or indirectly obtained through torture. He advanced three grounds for the request. First, in respect of the Yemen charges, he maintained that several of the hostage takers who had been arrested and tried in Yemen might have been subjected to torture or ill-treatment. Second, the applicant relied on the fact that Mr Abassi had been detained in Afghanistan and taken to Guantanamo Bay, Cuba, where, it was alleged, he had been tortured and ill-treated. He produced an affidavit from Mr Abassi dated 11 May 2007 in which Mr Abassi set out these allegations. Third, in respect of the Afghanistan charges, the applicant relied on the fact that the prosecution’s case centred on the allegations that the applicant had arranged for Mr Abassi and Mr Ujaama to meet another co-conspirator in Afghanistan and carry out violent jihad there. The latter co-conspirator was later identified as Ibn Al Shaykh Al-Libi and it was alleged by the applicant that Mr Al-Libi had been arrested in Afghanistan sometime after 11 September 2001 and also transferred to Guantanamo Bay whence he was subjected to extraordinary rendition to Libya and Egypt. Mr Al-Libi’s whereabouts at the time of the proceedings were unknown.

In an affidavit sworn on 4 May 2007, the co-lead prosecutor in the United States, Mr E.B. Bruce, addressed, among other matters, the treatment of Mr Abassi. Mr Bruce stated:

“34. Ferroz Abbasi [sic] was initially apprehended in Afghanistan in December 2001, fighting with al Qaeda and the Taliban. After he was apprehended, Abbasi was interviewed by two FBI agents while still in Afghanistan. Abbasi was properly read his Miranda rights by the FBI Agents, waived those rights in writing, and agreed to be interviewed by the FBI agents on two occasions in Afghanistan. A small amount of information obtained during those two consensual interviews in Afghanistan was relied upon in the original extradition request by the U.S., dated May 12, 2004, in this matter.

35. After Abbasi was initially detained in Afghanistan, he was later transferred to Guantanamo Bay, Cuba. None of the information obtained from Abbasi while detained in Guantanamo Bay was utilized in the original extradition request by the United States. Thus, ABU HAMZA’s unsubstantiated allegations concerning the treatment of prisoners in Guantanamo Bay, Cuba, are wholly irrelevant to these proceedings.

36. Moreover, solely in order to simplify and expedite the proceedings in this matter, I am identifying the small amount of information from Abbasi’s consensual interviews with the FBI in Afghanistan, after being read and waiving his Miranda rights, that was relied upon in the original extradition request in this matter. Because this information is not necessary to the extradition request, I ask that this information be considered withdrawn from the original extradition package. In addition, assuming a trial solely of defendant ABU HAMZA, the United States Government would not seek to introduce as evidence any prior statements or confessions of Abbasi. Indeed, in a trial against only ABU HAMZA, such statements of Abbasi would be inadmissible as hearsay (footnotes omitted).”

The affidavit then set out the information attributable to Mr Abassi and stated that it provided details of events in Afghanistan from the time Mr Ujaama parted company with Mr Abassi to the time of Mr Abassi’s capture. Mr Bruce then stated that even without the withdrawn information there remained ample evidence that the applicant had arranged for and facilitated jihad training and fighting in Afghanistan for his followers, including the testimony of Mr Ujaama and others.

In its preliminary ruling on the application for disclosure of 29 October 2007, the District Court found that there was no conduct alleged within the extradition proceedings which was founded upon or was tainted by evidence obtained by torture. For the Yemen charges, the District Judge found no evidence or information contained in the United States’ extradition request which could have come solely from those tried in Yemen. The material upon which the request was based was made up of admissions by the applicant, evidence given by the hostages, and real and documentary evidence of the provision of a satellite telephone by the applicant to the hostage takers. There was no reason to think that any of that evidence had been obtained by torture or tainted by it. For Mr Abassi, the fact that he was detained in Afghanistan and taken to Guantanamo Bay may well have been sufficient to raise concerns but the United States Government had expressly informed the court that all references to evidence and information given by Mr Abassi had been removed from the request. For Mr Al-Libi, the matter of his rendition would justify investigation if the extradition proceedings were based on evidence provided by him or information derived from him could have been the result of torture, but the United States Government regarded him as a co-conspirator not a witness and there was nothing in the extradition request which could plausibly be information or evidence obtained from him either directly or indirectly through torture.

At the full extradition hearing before the District Court the applicant argued, inter alia, that his extradition should not proceed due to the delay in seeking it and the fact that certain defence witnesses were no longer available, such as Abu Al Hassan, the defendant in the Yemeni proceedings who had been executed. The applicant also argued that his extradition would be a disproportionate interference with his private and family life guaranteed by Article 8 of the Convention. He further argued that extradition would give rise to a real risk of a violation of Article 3 of the Convention since he would be likely to be detained in a “supermax” detention facility such as the Federal Bureau of Prisons “ADX” prison at Florence, Colorado, where inmates spent twenty-three hours a day in single cells with little or no direct contact with other prisoners or prison staff. In this connection, he also relied on his poor health, specifically his type two diabetes, his high blood pressure, the loss of sight in his right eye and poor vision in his left and the amputation of both his forearms. A violation of Article 3, he claimed, would also result from the imposition of “special administrative measures” whilst in detention in the United States, such as restriction on visits and communications. Finally in respect of Article 3, he argued that he was at risk of re-extradition or deportation to a third country where he would be subject to ill-treatment contrary to that Article.

The District Judge, in his ruling of 15 November 2007, rejected all these submissions. There had been no obvious or culpable delay by the United States and the unavailability of certain witnesses and evidence for the defence would not render any trial unjust. For Article 8, the gravity and seriousness of the allegations outweighed the inevitable interference with the applicant’s family life. The District Judge heard evidence on conditions in supermax prisons and found that if such a prison regime were to be applied for a lengthy indefinite period it could amount to a breach of Article 3. On the likelihood of detention in a supermax prison, the District Judge heard conflicting evidence from the parties and preferred the evidence of the warden of ADX Florence. On the basis of his evidence, the District Judge found that the applicant would not detained in such a prison indefinitely, that his poor health and disabilities would be considered and, at worst, he would only be accommodated in such facilities for a relatively short period of time. He concluded:

“Whilst I find these conditions offensive to my sense of propriety in dealing with prisoners, I cannot conclude that, in the short term, the incarceration in a supermax prison would be incompatible with his [the applicant’s] Article 3 rights.”

The District Judge was also not satisfied that special administrative measures would be applied to the applicant but even if they were, he was bound by the ruling of the High Court in Ahmad and Aswat. Finally, there was no real risk of re-extradition. Having concluded that none of the bars to extradition applied, the District Judge sent the case to the Secretary of State for her decision as to whether the applicant should be extradited.

The applicant made representations to the Secretary of State. He submitted he was at risk of the death penalty if tried before a military commission, that he could be subjected to a superseding indictment which carried the death penalty and that he could be subjected to extraordinary rendition or re-extradition. He also argued that the diplomatic notes provided by the United States Government were not sufficient safeguards against these risks.

In a letter dated 7 February 2008 the Secretary of State rejected these representations, relying inter alia on the diplomatic notes provided by the United States Embassy. While it was accepted that the hostage-taking offences with which the applicant was charged could carry the death penalty, the Diplomatic Note No. 57 provided the clear assurance that he would not be made subject to it. Diplomatic Note No. 17 provided a similar assurance that he would not be subjected to Military Order No. 1 and thus would not be prosecuted before a military commission or treated or designated as an enemy combatant. There was no reason to doubt the good faith of the United States and the Secretary of State further relied on the findings of the High Court in Ahmad and Aswat in this respect. There were appropriate speciality arrangements in place in the United States such as to prevent trial on a superseding indictment and there was also no evidence that persons who had been extradited from the United Kingdom to the United States had been the subject of “onward ‘extraordinary rendition’”. Any remaining arguments under the Convention which had been made by the applicant had been considered by the District Court and the applicant had a right of appeal to the High Court from the District Court’s decision. It was also not appropriate for the Secretary of State to defer her decision pending the decision of this Court in Ahmad and Aswat given the representations which had been made by the United States Attorney General to the effect that any delay would have a serious adverse effect on the prosecution’s case.

On the same date, the Secretary of State ordered the applicant’s extradition. The applicant appealed to the High Court against the Secretary of State’s decision and against the decision of the District Court.

Before the High Court, the applicant advanced three main arguments against his extradition. First, he again argued that it would be an abuse of process to extradite him to the United States since the case against him was founded in whole or in part on evidence obtained directly or indirectly by torture or ill-treatment. Second, he argued that the extradition would be incompatible with Articles 3, 6 and 8 of the Convention and third, he argued that the passage of time since the alleged offences meant that the extradition would be unjust and oppressive.

The High Court gave its judgment on 20 June 2008 in which it dismissed the applicant’s appeal.

In respect of the contention that the evidence against the applicant was tainted by torture or ill-treatment, the High Court found that the terms of the Mr Ujaama’s plea bargain constituted pressure on him to give evidence but did not remotely come within the realms of ill-treatment or torture. For Mr Abassi, it found that while there are reasonable grounds to suspect that he might have been tortured, it was unnecessary to carry out further investigations in order to ascertain whether he had been. His evidence was no longer relied upon and would constitute inadmissible hearsay in the United States. For Mr Al-Libi, it also found that whatever the truth of the allegations as to his rendition and torture, his involvement in the proceedings would be as a co-conspirator and not as a witness against the applicant. On the basis of these findings, the High Court concluded that:

“[T]he stark reality is that when the possible use of direct ‘torture’ is addressed, it emerges that none of the victims of alleged torture provide evidence against the appellant. None of those allegedly ill-treated by the authorities anywhere in the world provide or will provide evidence against him either in relation to the extradition request or to any trial which may take place in the United States.”

The High Court then turned to the applicant’s argument that there were substantial grounds for believing that the extradition request and the evidence at any subsequent trial were found at least in part on evidence obtained indirectly by torture (“the fruits of the poisoned tree”). The applicant had argued that there were three possible ways in which such evidence tainted the extradition request and the future trial: expert evidence from the co-lead investigator of the allegations, FBI Special Agent Butsch, whose expertise on Al-Qaeda and its training camps in Afghanistan, it was alleged, was derived from interrogations where torture had been used; the evidence of Mr Ujaama, which could have been founded on material which became available after Mr Abassi’s capture; and the affidavit in support of the extradition request sworn by Mr Bruce who had referred to the complexity of the case and the fact that extensive additional evidence had been gathered from all over the world. The applicant also argued that in the United States, evidence obtained by torture was admissible and the fact that torture was involved went merely to the weight to be attached to that evidence. The High Court rejected these contentions. The claims made in relation to Mr Butsch and Mr Bruce were general and unparticularised. There was nothing to suggest that Mr Ujaama’s allegations in relation to Bly Oregon and Afghanistan derived from anything said by Mr Abassi under torture. Any allegations of improper coercion could be explored in cross-examination of Mr Ujaama. There was no material difference between the rules of evidence in the United States and the United Kingdom in respect of evidence obtained indirectly by torture and this Court’s judgments in Jalloh v. Germany [GC], no. 54810/00, ECHR 2006 ... and Harutyunyan v. Armenia, no. 36549/03, ECHR 2007 ... did not assist the applicant. A distinction had to be drawn between evidence obtained by torture and evidence obtained by ill-treatment falling short of torture, a distinction which was supported by the different wording in Articles 15 and 16 of United Nations Convention Against Torture (see relevant domestic and international law below). Jalloh had left open the general question whether the use of evidence obtained by ill-treatment in breach of Article 3 falling short of torture automatically rendered a trial unfair for the purposes of Article 6. In considering Harutyunyan the High Court stated that:

“[Counsel for the applicant] also drew our attention to the decision of the ECtHR in Harutyunyan v Armenia (application number 36549/03) a judgment dated 28th June 2007, in which the court was concerned with a confession and witness statements obtained in violation of Article 3. Jalloh was referred to and the court concluded, at paragraph 63, that:

‘Incriminating evidence – whether in the form of a confession or real evidence – obtained as a result of acts of violent or brutality or other forms of treatment which can be characterised as torture should never be relied on as proof of the victim’s guilt, irrespective of its probative value’.

Although the court did not have to decide whether the treatment inflicted on the appellant and two witnesses amounted to torture within Article 3, it clearly had regard to the findings of the domestic court as to the severity of the ill-treatment which had “the attributes of torture” when reaching its conclusion that there had been a violation of the right to a fair hearing under Article 6. This decision does not assist the appellant in the present case. There is no suggestion here that evidence obtained by violence or brutality will be used as proof of the guilt of the victim of such violence or brutality.”

In respect of the applicant’s arguments against extradition which were based on Article 3 of the Convention, the High Court first considered the validity of the assurance provided by the United States through the Diplomatic Notes. It considered an Amnesty International Report of 10 March 2008 entitled “United States of America: to be taken on trust?” which questioned the strength of such assurances but found the report to be based on very little evidence. The High Court concluded:

“We do not seek to add to the views expressed by the Divisional Court in Aswat v USA [2006] EWHC 2927 (Admin), or indeed the rejection, as manifestly ill-founded, by the European Court of Human Rights in Al Moayad v Germany (Application no. 3586/03, para 68) of the contention that the diplomatic assurances of the United States in the context of the ‘war on terror’ can and should no longer be relied on. In our judgment, if we need to look for a guarantee that the USA will honour its diplomatic assurances, the history of unswerving compliance with them provides a sure guide. We are satisfied that these diplomatic assurances will be honoured.”

In relation to the conditions of detention the applicant would face in the United States, the High Court found that, if convicted, the applicant would be sentenced to very lengthy terms of imprisonment and that, in all likelihood, a whole life tariff would be imposed. It found that of itself this would not constitute a breach of Article 3. On the question of the compatibility with Article 3 of detention in a “supermax prison such as ADX Florence, Colorado, the High Court considered further evidence which had not been before the District Court, specifically a report by a professor of prison studies, Professor Andrew Coyle, who had reviewed the applicant’s medical condition and assessed the likely impact of detention at ADX Florence but who had not been given an opportunity to visit it. However, it found Professor Coyle’s evidence did not undermine the conclusions of the District Court and further relied on the statement of the warden of ADX Florence to the effect that if, after a full medical evaluation, it was determined that the applicant could not manage his activities of daily living, it would be highly unlikely that he would be placed at ADX rather than at a medical centre.

“69. We must add two footnotes. First, the constitution of the United States of America guarantees not only ‘due process’, but it also prohibits ‘cruel and unusual punishment’. As part of the judicial process prisoners, including those incarcerated in Supermax prisons, are entitled to challenge the conditions in which they are confined, and these challenges have, on occasions, met with success. Second, although Mr Wiley’s [the warden at ADX Florence] evidence does not constitute the kind of assurance provided by a Diplomatic Note, we shall proceed on the basis that, if the issue of confinement in ADX Florence arose for consideration, a full and objective medical evaluation of the appellant’s condition, and the effect of his disabilities on ordinary daily living and his limited ability to cope with conditions at ADX Florence would indeed be carried out. This would take place as soon as practicable after the issue arises for consideration, so that the long delay which appears to have applied to another high profile convicted international terrorist, who is now kept at an FOB [Federal Bureau of Prisons] medical centre because of his ailments would be avoided.

70. We should add that, subject to detailed argument which may be advanced in another case, like [the District Judge], we too are troubled about what we have read about the conditions in some of the Supermax prisons in the United States. Naturally, the most dangerous criminals should expect to be incarcerated in the most secure conditions, but even allowing for a necessarily wide margin of appreciation between the views of different civilised countries about the conditions in which prisoners should be detained, confinement for years and years in what effectively amounts to isolation may well be held to be, if not torture, then ill treatment which contravenes Article 3. This problem may fall to be addressed in a different case.”

Finally in respect of the Convention, the High Court rejected the applicant’s argument that the extradition would be a disproportionate interference with his rights under Article 8 of the Convention and stated:

“Inevitably, the more serious the offence, the longer the likely sentence, and the greater the interference with the extraditee’s Article 8 rights, but the common approach to terrorism throughout the civilised world would be derailed if an extradition process which might culminate in amply justified sentences of huge length, to be served in prisons abroad, could, save in the most exceptional circumstances, constitute a breach of the defendant’s Article 8 rights: otherwise the entire purpose of international co-operation on this issue would be undermined.”

In respect of the passage of time argument against extradition, the High Court accepted that the United States was the proper forum for any trial and that the prosecution’s case had not been viable until the evidence of Ms Quinn and Mr Ujaama became available in 2003. For all three groups of charges, the applicant had been unable to identify any witnesses who would have been available and who would have assisted his defence had the prosecution been brought sooner. The High Court was also not persuaded that it was more appropriate for the applicant to be tried in the United Kingdom. The applicant had argued that such a trial would have the added advantage of ensuring that his Article 6 rights would be preserved. In the High Court’s view, there was no United Kingdom connection with the Bly, Oregon and Afghanistan offences. The absence of such a connection would eventually reinforce the argument which would inevitably be made by the applicant during any trial in the United Kingdom that such a trial would be an abuse of process.

Having rejected each of the applicant’s arguments against extradition, the High Court accordingly dismissed his appeal.

The applicant then applied to the High Court for a certificate of points of law of general public importance under section 114 of the Extradition Act 2003 (see relevant domestic and international law below) and for leave to appeal to the House of Lords. On 23 July 2008, the High Court refused both applications.

On 8 February 2008, another diplomatic note was issued (no. 005) by the United States Embassy which where relevant stated:

“The Government of the United States assures the Government of the United Kingdom that if Mustafa Kamel Mustafa, aka Abu Hamza is acquitted or has completed any sentence imposed or if the prosecution against him is discontinued, not pursued or ceases for whatever reason, United States authorities will return Mustafa Kamel Mustafa, aka Abu Hamza to the United Kingdom, if he so requests.”

On 31 July 2008, in a response to a request for clarification by the applicant’s solicitors, the Government stated that the undertaking should not be taken necessarily as a guarantee of readmission. Any application would be considered in accordance with the legislation in force at the material time.

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 and 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 –

(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.”

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 71 of the Extradition Act 2003 provides for the issue of an arrest warrant 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. If the extradition would be compatible, the judge must send the case to the Secretary of State for her decision whether the person is to be extradited (section 87(3)).

Section 93 provides that once a case is sent to her for her decision, the Secretary of State must decide whether she is prohibited from ordering the extradition. She must not order a person’s extradition if he could be, will be or has been sentenced to death (section 94); or there are no speciality arrangements with the category 2 territory which requests the extradition (section 95).

Sections 103 and 108 provide 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. Under section 114(3) an appeal requires the leave of the High Court or the House of Lords. Under section 114(4) leave to appeal must not be granted unless: (a) the High Court has certified that there is a point of law of general public importance involved in the decision; and (b) it appears to the court granting leave that the point is one which ought to be considered by the House of Lords.

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:

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.

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.

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.”

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).

The applicant complains that there would be violations of Articles 3, 6, and 8 of Convention if he were extradited to the United States.

First, under Article 3 he complains that he risks a sentence of life imprisonment without parole. Second, also under Article 3, the applicant complains that as a result of his medical condition and disabilities there would be a breach of that Article if he were detained in a supermax detention facility. Third, he submits that the diplomatic assurance of 8 February 2008, when taken with the United Kingdom Government’s letter to his representatives of 31 July 2008, is insufficient to prevent removal to a third state, such as Egypt, where he is at a real risk of ill-treatment contrary to Article 3.

Fourth, under Article 6 he complains that his trial would be unfair because of the alleged use of evidence obtained under torture or threat of torture of third parties. Fifth, also under Article 6, he complains that there is a real risk that he would be subjected to special administrative measures. Sixth, he alleges that his trial will be prejudiced by the fact that he has been publicly designated as a terrorist by the United States Government. Seventh, he alleges he is at risk of designation as an enemy combatant and thus trial in a military court under Military Order No. 1. The diplomatic assurances to the contrary, as provided by the United States to the United Kingdom authorities, are insufficient to prevent this risk materialising. Eighth, he alleges that his trial will be prejudiced by the delay in seeking his extradition.

Finally, under Article 8 he complains that his extradition would be a disproportionate interference with his private and family life in the United Kingdom.

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

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

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You are here: BAILII >> Databases >> European Court of Human Rights >> Mustafa Kamal MUSTAFA v the United Kingdom - 36742/08 [2008] ECHR 970 (18 September 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/970.html Cite as: [2008] ECHR 970