European Court of Human Rights (Application no /09) Atilla Gokalp v. Poland WRITTEN COMMENTS THE HELSINKI FOUNDATION FOR HUMAN RIGHTS

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1 European Court of Human Rights (Application no /09) Atilla Gokalp v. Poland WRITTEN COMMENTS BY THE HELSINKI FOUNDATION FOR HUMAN RIGHTS 4 November 2010 Warsaw, 4 November 2010 I. INTRODUCTION 1. These written comments are submitted by the Helsinki Foundation for Human Rights (hereinafter referred to as HFHR ) with its seat in Warsaw, Poland at 11 Zgoda pursuant to the leave granted to HFHR by Nicolas Bratza, the President of the Chamber of the European Court of Human Rights (hereinafter: the Court ), under Rule 44 2 of the Rules of the Court. 2. These comments are limited only to the points of law, including questions of interpretation of the Convention as well as questions if life imprisonment without parole may violate article 3 of the Convention. These submissions do not include any comments on the facts of the case of Atilla Gokalp v. Poland (Application No /09). The focus of the opinion is set on the general principles involved in the case. II. INTEREST OF THE HELSINKI FOUNDATION FOR HUMAN RIGHTS 3. HFHR is a non-governmental organization established in 1989 by members of the Helsinki Committee in Poland, in order to promote human rights and rule of law in Poland as well as to contribute to the development of an open society in Poland. One of the activities of the HFHR includes legal actions undertaken in the public interest, including the representation of parties and preparation of legal submissions to national and international courts and tribunals, particularly within the framework of the Strategic Litigation Programme. The aim of such submissions is to influence the process of changing laws and practices that we find contrary to human rights. 4. Since its establishment, the HFHR has been promoting the standards of the European Convention on Human Rights (hereinafter referred to as the Convention ). This refers also to punishment amounting to inhuman and degrading treatment and punishment as a consequence of extradition when irreducible life sentence may be imposed. III. FACTS 5. This Amicus Curiae Brief is based on the statement of facts provided by the Registry of the European Court of Human Rights. The case concerns Mr. Atilla Gökalp (the Applicant), who was arrested in Poland and with respect to whom criminal proceedings were initiated in the United States for his involvement in a criminal conspiracy to

2 distribute narcotics, conspiracy to money laundering, money laundering in association with other individuals. The United Stated requested the Applicant's extradition, which is currently pending at the ministerial level in Poland. 6. The applicant lodged an application to the European Court of Human Rights (hereinafter: the Court) arguing that extradition to U.S. will violate his rights, in particular Article 3 of the Convention. The Court in statement of facts (17 June 2010) directed to the Parties the question whether the Applicant's extradition would be contrary to Article 3 of the Convention, especially if the penalty of life incompressible imprisonment is imposed. IV. THE LAW IV. 1. Relevant U.S. Law 7. Since the Comprehensive Crime Control Act of 1984, there is no longer parole for individuals convicted of federal offenses after In other words, an inmate can no longer apply to a group of people, the parole board, to recommend to shorten his original sentence because of good behaviour during his time in prison thus far. Notwithstanding the elimination of parole, there are four ways in which a term of imprisonment, even a life sentence without parole, may be modified after sentencing has already occurred and appeals have been exhausted. This may be on the basis of explicit statute provision, a motion by the government pursuant to Rule 35(b) of the 2009 Federal Rules of Criminal Procedure (hereinafter: Fed. R. Crim. P. ), a motion by the Director of the Bureau of Prison s, or Presidential clemency. 8. Generally, a court may modify a sentence to the extent permitted by a statute. 1 Section 3582(c)(1)(B) of the United States Criminal Code also allows the court to modify a sentence under Rule 35(b)(1) of the 2009 Fed. R. Crim. P. According to Rule 35(b)(1), upon the government s motion made within one year after the sentencing, the court may reduce the defendant s sentence. This is only allowed if the defendant provided substantial assistance in investigating or prosecuting another person. A sentence may also be reduced if the government s motion was made over one year after the sentencing, and (1) the defendant provided substantial assistance involving information that the defendant did not obtain until one year after the sentence; (2) the defendant could not have reasonably anticipated to be useful until one year or more after the sentence; (3) or was given within one year of the sentence but did not become useful to the government until a year or more after the sentence The court may also reduce an imposed term of imprisonment by so-called compassionate release, upon motion of the Director of the Bureau of Prisons if extraordinary and compelling reasons warrant such a reduction. 3 Title 18, section of the 2009 Federal Code of Regulations requires that the reasons for a reduction cannot be reasonably foreseen by the court during the time of sentencing. Finally, the modification must also be consistent with the Policy Guidelines of the Sentencing Commission (hereinafter the Guidelines ). The Guidelines also require that the defendant does not pose danger to others in the community. 4 According to the Guidelines extraordinary and compelling reasons. should be understood as terminal illness, permanent severe mental or physical debilitation due to the aging process, and finally death or incapacitation of the defendant s only family member capable of caring for the defendant s minor child or minor children. 5 1 Title 18 United States Code (hereinafter: U.S.C.) 3582(c)(1)(B) (2009). 2 Fed. R. Crim. P. 35(b)(2) (2009) U.S.C. 3582(c)(1)(A)(i) (2009). 4 USSG 1B1.13(2) (2009). 5 USSG 1B1.13, comment. (n.1). 2

3 10. There must be a number of factors in place for a life sentence. First of all, the sentence will be determined by sentencing guidelines promulgated by the United States Sentencing Commission. According to the Guidelines, whether it is lawful for a judge to give a sentence of life imprisonment without parole to the Applicant will depend primarily on three significant but unknown factors (1) his criminal history, (2) his involvement as a major or minor actor in the offences, and (3) whether he accepts responsibility for the offense. Base Offenses and Corresponding Punishments 11. According 21 U.S.C. 841(a)(1), trafficking controlled substances constitutes a criminal offense. If the controlled substance involves more than five kilograms of cocaine, then the person shall be sentenced to a term of imprisonment, which may not be less than ten years or more than life. 6 In other words, the statute allows a life sentence but forbids the death penalty if convicted for the offense of trafficking controlled substances. Conspiracy to commit drug trafficking as defined by 841(a)(1) of the U.S.C. shall be subject to the same penalties as those prescribed for the offense. 7 The sentencing recommend by the Guidelines for conspiracy of drug trafficking varies widely depending on a number of factors. An offense level depends on the amount of controlled substances involved, the type of controlled substances involved, whether anyone was injured because of the offense, and whether the defendant has prior convictions for the same offense Money laundering according to the U.S. federal code is most often an offense in which: Whoever with the intent to promote the carrying on of specified unlawful activity (...) conducts or attempts to conduct a financial transaction involving property represented to be the proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful activity, shall be fined under this title or imprisoned for not more than 20 years, or both Any individual who conspires to commit any offense in section 1956 shall be shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy. 10 Section 2S1.1 of the Guidelines provides details regarding how to calculate an appropriate offense level for money laundering. However, regardless of the Guidelines recommendations, any calculation must not exceed the statutory maximum for the sentence of money laundering 20 years For the purposes of sentencing, all counts involving substantially the same harm shall be grouped together into a single Group when the counts hurt the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan. 12 The count with the highest offense level, taking into account the other adjustments stipulated in Chapter 3 of the Guidelines becomes the offense level for each count in the group If there are multiple groups, then the combined offense level is determined by taking the offense level from the group with the highest offense level and, depending on the seriousness of the other groups, increasing that offense level accordingly U.S.C. 841 (b)(1)(a)(ii)(ii) (2009) 7 21 U.S.C. 846 (2009). 8 USSG 2D U.S.C. 1956(a)(3)(A) (2009) U.S.C. 1956(h) (a)(3)(a). 12 USSG 3D1.2(b). 13 USSG 3D USSG 3D1.4. 3

4 15. The total punishment for each count shall be determined by the combined offense level. 15 If the sentence imposed by the count with the highest statutory maximum meets the total punishment, then the sentences for the other counts will be served concurrently. 16 If this is not the case, then the sentences will be served consecutively to the extent that the total punishment is met. 17 The statutory maximum or minimum sentence for each count necessarily becomes the recommended guideline sentencing range regardless of actual result of the the guideline calculations Offenses that are listed in the U.S.C. are tried in federal courts because they are offenses legislated by the federal government. Statues in the Code describe offenses as well as statutory maximums and minimums, if any, for sentencing. Judges and the United States Sentencing Commission determine the specific length of sentences within what is statutorily allowed. 17. According the Sentencing Reform Act of 1984, the United States Sentencing Commission has the authority to create guidelines for sentencing polices and procedures in the federal criminal justice system. The Commission provides sentencing ranges for crimes based generally on the nature of the offense and the characteristics of the offender By selecting the appropriate Offense Level and Criminal History Category as guided by the guidelines a sentencing table range is derived from a sentencing table. 20 After a base offense level is selected, it may be adjusted based on a number of mitigating or aggravating factors Once the correct sentencing range has been calculated, the court should select a sentence within that range. The Guidelines are technically not mandatory, and federal judges may issue sentences outside the range suggested by the guidelines. 22 However, judgements issued by the Supreme Court have signalled that sentences should generally follow the Guidelines. For example, a sentence is procedurally unreasonable when a district court fails to calculate accurately the sentencing range suggested by the Guidelines. 23 Life sentences not suggested by the Guidelines are perhaps even more likely to be high scrutinized by higher courts because as mentioned above, without parole, sentences for federal crimes Since the Sentencing Reform Act of 1984 abolishes parole, once the trial court has issued a sentence it cannot be subsequently shortened due to good behaviour or other similar factors. 25 Thus, any and all life sentences in the federal system are essentially life sentences without the possibility of parole. Though probation and supervised release may count as serving one s sentence, and, thus, take the place of actual imprisonment, those replacements are only available to individuals who have a sentence range within Zone A, B, or C on the sentencing table. 26 Furthermore, such a sentence is given by the judge at the time of sentencing, not at a later date. The sentence may of course be changed by other means such as on appeal, by presidential pardon, or by retroactive legislation. 21. The United States Extradition Treaty with Poland prohibits the U.S. from charging individuals who have been extradited from Poland for offenses other than those stated on the extradition request. The Treaty allows for some exceptions. This rule only applies to 15 USSG 5G1.2(a). 16 USSG 5G1.2(b). 17 USSG 5G1.2(c). 18 USSG U.S.C. 994(b)(2) (2009). 20 United States Sentencing Commission, Guidelines Manual, Ch.5, Pt.A, (sentencing table) (Nov. 2009). 21 USSG Ch.3, USSG Ch.4, USSG Ch United States v. Booker, 543 U.S. 220 (2005). 23 Gall v. United States, 552 U.S. 38 (2007). 24 USSG Ch.1, Pt.A, intro. comment. 25 USSG Ch.1, Pt.A, intro. comment. 26 USSG 5C11. 4

5 offenses committed prior to the extradition date and may only be waived by the Requested State s consent The Applicant, if extradited to the United States, can only be convicted of the three counts listed in the United States extradition request: money laundering, conspiracy to launder money, and conspiracy to traffic drugs under 1956(a)(3)(A), 1956(h) 28 and 861(a) (1), 864 respectively. The United States Extradition Treaty with Poland prohibits the United States government, within certain exceptions, from convicting the Applicant for other offenses Since anyone has multiple counts, the total punishment will be determined by the individual count or group of counts that has the highest offense level. 30 Normally, such an analysis requires determining which counts involve the same harm, victim, and common criminal objective It is highly likely that all three counts can be grouped together. This is especially so since the indictments seem to be all related to his involvement with controlled substances at the Warsaw airport. Furthermore, drug trafficking and money laundering often go hand in hand. The profiting from the sale of illegal drugs necessarily involves transactions with proceeds from unlawful activity. Finally, the crime of money laundering is derivative of some other illegal activity, and there is no other offense listed in the extradition request aside from money laundering. If the underlying offense is drug trafficking, then the Guideline s commentary states that they should be grouped together Additionally, the requirements for putting all three counts into one group, set out in 3D1.2(b) of the Sentencing Guidelines, seem to be met. The multiple counts likely involve transactions connected by a common criminal objective causing the same harm to the same victim. Namely, the money laundering and the drug trafficking were both for the purposes of profiting from bringing large amounts of Cocaine, an illegal, addictive substance, into the U.S. and thereby harming society at large. 33 Thus, the counts should be considered a single Group. 26. Notwithstanding the necessary Chapter Three adjustments, the money laundering offense determines the highest offense level for the Group. The Applicant base offense level for trafficking over 1000 KG of cocaine is However, for money laundering, the base offense is: The offense level for the underlying offense from which the laundered funds were derived, if (A) the defendant committed the underlying offense (or would be accountable for the underlying offense under subsection (a)(1)(a) of 1B1.3 (Relevant Conduct)); and (B) the offense level for that offense can be determined Extradition Treaty with Poland, art. 19 1, 2, entered into force 17 September 1999, S. Treaty Doc ; Additionally, Article 19(3) makes clear that these restrictions do not apply if the extradited person leaves the Requesting State after extradition and voluntarily returns to it or fails to leave the Requesting State within thirty days of being free to do so. art. 19(3), S. Treaty Doc While the person may also be convicted for money laundering under 18 U.S.C. 1957, this offense carries a statutory maximum sentence of ten years in contrast to the statutory maximum of twenty years under The main difference between the two substantive offenses is that 1956 requires the mens rea element of acting with the intent to promote the carrying on of specified unlawful activity. 29 Art. 19, S. Treaty Doc USSG 5G1.2(b). 31 USSG 3D USSG 2S1.1, comment. (n.6). 33 USSG 3D1.2, comment. (n. 2) (advising that when there is no identifiable victim, such as in drug offenses, the victim is society). 34 If it is established that death or serious injury has resulted from the use of the substance and the defendant has committed the this offense after at least one prior conviction of drug trafficking or conspiracy to traffic drugs, then the offense level raised to 42. See USSG 2D1.1(a)(1). However, guideline will likely not apply since there is no indictment for offenses relating to bodily injury or death in the extradition request; See USSG 2D1.1(c) 5

6 27. There is not enough information to determine whether criteria A of the above guideline can be met in this case. 36 Assuming it is, however, then the offense level for the underlying offese would be 38. Since, the offense is under 1956, then the offense level increases to According to 2S1.1(h) of the Guidelines, those who conspire to launder money are subject to the same penalty. Thus, in sum, the highest offense level for the group is 40 for money laundering or conspiracy to launder money without adjustments. 28. The offense level can be adjusted based on a number of factors. If the person was a minimal or minor participant in the offenses, then his offense level is decreased between six to eight levels. 38 If the person accepted responsibility for the offense, then the sentence is lowered between two to three levels. If one was an organizer, leader, supervisor, or manager of the criminal activity, then the offense level is raised between two to four levels. 39 There are numerous other adjustments that are possible, however, the above are the most common. Furthermore, the adjustments are, clearly, highly fact specific. The only adjustment in which there is some certainty, is that the person will likely accept responsibility for the offenses (given the 1000 KGs of Cocaine at the Warsaw airport), thereby decreasing his base offense level by several points. According to these adjustments alone, the Applicant may face an offense level of anywhere between 43 to The criminal record of a defendant increases the likelihood of the defendant receiving a life sentence. It becomes an increasingly important factor in whether a sentencing range includes a life sentence the lower the offense level. If the offense level is 43, then according to the Guidelines, the person should get a life sentence for drug trafficking. If the offense level is 42, then the Guidelines recommends a sentencing range that includes a life sentence, regardless of the Applicant's criminal record. However, for any lower offense levels, in order to obtain a sentencing range that carries a life sentence, the Applicant must be in a criminal history category higher than Category I. 40 This translates into the person having to have spent at least 60 days in prison in the United States As the Applicant is a Dutch citizen, it is unlikely that he has an extensive criminal record in the United States. Foreign sentences are not party of the computation of a defendant s criminal history. 42 However, an upward departure to the computing criminal history points is possible if the criminal history category substantially under-represents the defendant s criminal record, such as for prior sentences for foreign offenses From the facts that are available, under the Guidelines, it is possible for the Applicant to receive a life sentence, the total punishment, for conspiracy to traffic drugs. Such a life sentence would also be within the statutory maximum for conspiracy to traffic drugs. 44 Since the total punishment may be met by the drug count, the other sentences for the other counts will be served concurrently USSG 2S1.1(a)(1); Note that because the offense level for money laundering is derivative of the offense level for drug trafficking, the offense for the former will always be higher than the latter. 36 USSG 2S1.1(a)(2) determines the offense level primarily in cases in which (A) the defendant did not commit the underlying offense or (B) the defendant did commit the offense, but the offense level would be impracticable to determine. Since, the underlying offense is drug trafficking, however, and the defendant was detained with over 1000 KG of cocaine. It would be highly unlikely that 2S1.1(a)(B) would apply in this case. 37 2S1.1(b)(2)(B) 38 USSG 3B1.2, USSG 2D1.1(a)(5). 39 USSG 3B USSG Sentencing Table. 41 USSG 4A USSG 4A1.2(h). 43 USSG 4A1.3(a)(2)(A) U.S.C. 841, G1.2. 6

7 32. Even if a sentencing range includes a life sentencing, the Guidelines suggest that the judge take a number of specific offender characteristics, such as age, extraordinary physical impairment, and extreme dependence on criminal activity for one s livelihood. 33. Furthermore, even if a judge gives a life sentence, the Guidelines give the judge some flexibility in determining how the Applicant will serve his sentence. For example, a judge may order the Applicant to serve out a period of his sentence beyond the minimum in the sentencing range in conditions other than imprisonment. With the facts that are available, it is clear that Mr. Gokalp s applicable sentencing range will be in Zone D of the sentencing table. In that case, the Applicant's minimum term may only be satisfied with imprisonment. If the Applicant is given an offense level of 43, the minimum term recommended by the Guidelines would be a life sentence--a life sentence incrompressible. 34. And regardless of the suggested range in the Guidelines, the trial judge does not have to impose a life sentence or a life sentence incompressible. The opposite is also true. A trial judge may impose a life sentence incompressible even if the Guideline sentencing range does not recommend it. Further, the judge may give a life sentence, but only require the Applicant to serve the minimum of the sentence in inprisonment. The judge is only bound by statutory maximums and minimums (and upper courts). Of course, a judge is much more likely to give a life sentence if the range is recommended by the Guidelines. 46 Presidential Clemency 35. The United States Constitution grants the President the power to commute-reduce, dismiss, or end-sentences for federal offenses. 47 Submissions for clemency should be made to the Pardon Attorney in the Office of the Pardon Attorney. The Pardon Attorney in consultation with the US Attorney will then make recommendations to the President. The President exercising his judgement will make the final judgements The Office of the Pardon Attorney provides statistics for Presidential Clemency Actions. Though the number of petitions and grants for each presidential term have varied, generally nor more than 1% and often less than 1% of petitions are granted. Since 1992, at least half of sentences that are commuted are for drug related offenses. Two of those sentences were for terms of imprisonment that were either de jure or de facto life sentences. 49 During President H.W. Bush s four-year term in office, 0.41% of clemency petitions were granted. A number of 735 clemency petitions were received and three were granted. One commutated sentence was for a drug related offense. The Office did not provide information regarding the length of the original sentence nor how much of the sentence was commuted by the President. 50 During President William J. Clinton s eightyear term in office 1.1% of clemency petitions were granted. Total of 5488 clemency petitions were received and 61 were granted. A number of 33 out of the 61 commutated sentences were for drug related offenses. One petitioner s sentence of 85 years, not a life sentence per se but a de facto life sentence, was commuted to seven years. 51 During President George W. Bush s eight-year term in office, approximately 0.13% of clemency petitions were granted. There were 8576 clemency petitions received and 11 were granted. Eight out of the eleven successful petitioners convicted for drug related offenses. One of 46 For example, according to Sentencing Guideline statistics, only 1% of the all power cocaine cases received sentences above the Guidelines sentencing range. Sentences Relative to the Guideline Range for Drug Offenders by Each Drug Type. Table 45. United States Sentencing Commission, 2009 Datafile, USSCYF US. Const., art. II, 2, cl. 1. Executive Order dated June 16, 1893 transferred clemency petition processing and advisory functions to the Justice Department C.F.R. 1.1 et seq (2009). 49 Office of the Pardon Attorney, Presidential Clemency Actions by Administration: 1945 Present, available at (last visited 16 July 2010). 50 Ibidem 51 Ibidem 7

8 the successful petitioner s sentence for life imprisonment had his sentence commuted to thirteen years of imprisonment Thus far in President Barack H. Obama s term in office, 2,503 petitions have been received and no clemency petitions have been granted to date. 53 From the above, it is difficult to derive clear and definite tendency as to granting presidential clemency in the U.S. 38. From the facts that are known currently, the possiblity that the Applicant will receive a life sentence without parole if convicted for conspiracy to launder money, money laundering, and conspiracy to distribute over 1000KG of cocaine, cannot be definitely excluded. Firstly, if convicted of conspiracy to distribute cocaine, there is no statutory bar to a life sentence. Secondly, based on the Guidelines, it is plausible for the Applicant to receive a sentencing range that includes a life sentence. IV. 2. Life imprisonment as a violation of Article 3 of European Convention on Human Rights 39. According to the Court's case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. 54 The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration and its physical or mental effects, and in some cases, the sex, age and state of health of the victim. 55 The severity of treatment must go beyond the severity inevitably related with legitimate treatment or punishment. 56 When considering whether a punishment is degrading within the meaning of Article 3, regard has to be given to its object, whether it is to humiliate and debase the person concerned, and if in consequence, it affected prisoner s personality in a manner incompatible with Article 3. As one of the factors relevant when assessing conditions of detention the Court included duration of detention As the Court repeatedly noted, imposition of an irreducible life sentence on an adult may raise an issue under Article From the Leger v. France judgement it seems to be clear that if the applicant was deprived of all hope of obtaining an adjustment of his sentence, which was not irreducible de iure or de facto, the imprisonment would amount to inhumane or degrading treatment This has been reaffirmed in the Kafkaris v. Cyprus, wherein the Court stated that in determining whether a life sentence is irreducible it is important to ascertain whether the 52 Ibidem 53 Ibidem 54 Leger v. France, (Application no /02), judgement of 11 April 2006, para. 90; Kafkaris v. Cyprus, (Application no /04), judgement of 12 February 2008, para. 97; A. and Others v. the United Kingdom, (Application no. 3455/05), judgement of 19 February 2009, para Ireland v. the United Kingdom, judgement of 18 January 1978, para. 162; Vilvarajah and Others v. the United Kingom, (Application no /87; 13164/87; 13165/87; 13447/87; 13448/87), judgement of 30 October 1991, para. 107; Costello Roberts. v. the United Kingdom, judgment of 25 March 1993, para. 30; Leger v. France, (Application no /02), judgement of 11 April 2006, para Kafkaris v. Cyprus, (Application no /04), judgement of 12 February 2008, para Soldatenko v. Ukraine, (Application no. 2440/07), judgement of 23 October 2008, para. 69, see also Garabayew v. Russia, (Application no /02), judgement of 7 June 2007, para Leger v. France, (Application no /02), judgement of 11 April 2006, para. 90; Kafkaris v. Cyprus, (Application no /04), judgment of 12 February 2008, para. 97; A. and Others v. the United Kingdom, (Application no. 3455/05), judgement of 19 February 2009, para. 128; see also ; see also: Nivette v. France, (Appilcation no /98), decision on admissibility, 3 June 2001, translation, p. 6; Einhorn v. France (Application no /01), decision on admissibility, 16 October 2001, para. 27; Stanford v. the United Kingom, (Application no /01), decision on admissibility, 12 December 2002, p. 8; Wynne v. the United Kingom (Application no /01), decision on admissibility, 22 May 2003, 22 May 2003, p Leger v. France, (Application no /02), judgement of 11 April 2006, para

9 prisoner has de iure and de facto based possibility and prospects for earlier release. 60 De iure possibilities are to be provided for in national laws usually affording the possibility of review of a life sentence, be it through commutation, remission, termination or conditional release. According to the Court, the mere fact that in practice the sentence is served in full, does not constitute its irreducibility. It is the existence of a system providing for consideration of the possibility of release, that is a factor to be taken into account when assessing the compatibility of a particular sentence with Article 3, 61 and it is irrelevant whether no minimum term of unconditional imprisonment or if the possibility of parole for prisoners serving life sentence is limited within the state system De facto possibilities should be read from the states' punitive policies. The Court noted that when determining whether a violation of Article 3 had occured, regards should be given to the standards prevailing amongst the member States of the Council of Europe in the field of penal policy, in particular concerning sentence review and release arrangements. 63 In this respect, however, it should be stressed that after having referred to a number of international instruments and developments in punitive policy 64 the Court in its judgement reaffirmed its previous view, that matters relating to early release policies including the manner of their implementation fall within the power member States have in the sphere of criminal justice and penal policy and observed that no clear tendency can be ascertained with regard to the system and procedures implemented in respect of early release. 65 This was also noted in partly dissenting opinion of Judges Tulkens, Bral Barreto, Fura-Sandstroem, Spielmann and Jebens in their concurring opinion In this respect we would kindly draw the Court's attention to the following documents: 44. The Committee of Ministers Recommendation (2003)22 of 23 September 2003 on conditional release (parole), which calls upon the member states to introduce conditional release in their legislation if it does not already provide for this measure. 67 The same Recommendation further acknowledges that conditional release which is not a form of leniency or of lighter punishment but a mean of sentence implementation is one of the most effective and constructive means of preventing reoffending and promoting resettlement. 68 The European Prison Rules adopted by the Committee of Ministers on 11 January 2006 (Recommendation (2006)2), reflecting the existing European consensus in this field, also refer to the question of release of sentenced prisoners: In the case of those 60 Kafkaris v. Cyprus, (Application no /04), judgement of 12 February 2008, para A. and Others v. the United Kingdom, (Application no. 3455/05), judgement of 19 February 2009, para. 128; Kafkaris v. Cyprus, (Application no /04), judgement of 12 February 2008, paras Kafkaris v. Cyprus, (Application no /04), judgement of 12 February 2008, para. 98; see also Einhorn v. France, (Application no /01), decision on admissibility, 16 October 2001, paras Kafkaris v. Cyprus, (Application no /04), judgement of 12 February 2008, para. 101; Soering v, the United Kingdom, (Application no /88), judgment of 7 July 1989, para Kafkaris v. Cyprus, (Application no /04), judgement of 12 February 2008, paras Kafkaris v. Cyprus, (Application no /04), judgement of 12 February 2008, para. 104; see also Achour v. France, (Application no /01), 29 March 2006, para Kafkaris v. Cyprus, (Application no /04), judgement of 12 February 2008,partly dissenting opinion, p. 67, para Council of Europe, Committee of Ministers, Recommendation, Recommendation Rec(2003)22 of the Committee of Ministers to member states on conditional release (parole), Adopted by the Committee of Ministers on 24 September 2003 at the 853rd meeting of the Ministers' Deputies. 68 Council of Europe, Committee of Ministers, Recommendation, Recommendation Rec(2003)22 of the Committee of Ministers to member states on conditional release (parole), Adopted by the Committee of Ministers on 24 September 2003 at the 853rd meeting of the Ministers' Deputies; available at: %282003%2922&Language=lanEnglish&Ver=original&Site=CM&BackColorInternet=9999CC&BackColor Intranet=FFBB55&BackColorLogged=FFAC75 9

10 prisoners with longer sentences in particular, steps shall be taken to ensure a gradual return to life in free society (107.2); The Memorandum of the Council of Europe Commissioner for Human Rights of 12 November 2007, in which the Commissioner firmly asserted that the use of life sentences should be questioned. The Commissioner added that if release was denied persistently until the end of a detainee's life, this would amount to de facto life imprisonment; 70 Following his visit to France on May 2008, the Commissioner stressed the Court's position that the imposition of an irreducible life sentence on an adult may raise an issue under Article 3. Furthermore, the Commisioner stated that Harsh measures have to be applied in some circumstances in order to protect society, but on no account should their use become routine; they must remain the last resort, or the persons in question will be denied any chance of rehabilitation. ; The General Comment No 20 on Article 7 of the International Covenant on Civil and Political Rights found that: In the view of the Committee, States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement. States parties should indicate in their reports what measures they have adopted to that end. ; The Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, adopted by the Council of the European Union on 13 June 2002, which provides for the execution in any Member State of a judicial decision issued in another Member State for the arrest and surrender of a person for the purpose of criminal proceedings or the execution of a custodial sentence but, crucially, makes this obligation subject to certain guarantees to be provided by the State, including the following: if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure... ; Finally, it is important to note the developments in international criminal law. As provided for in Article 77 (1)(b) of the Rome Statute of the International Criminal Court, a life sentence may be imposed on a person found guilty of the crime of genocide, crimes against humanity, war crimes or the crime of aggression only when justified by the extreme gravity of the crime and the individual circumstances of the convicted person In Article 110 the Statute specifies the conditions for obtaining reductions of sentences: When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. 69 Council of Europe, Committee of Ministers, Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, Adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies, para See: Thomas Hammarberg, Council of Europe Commissioner for Human Rights, "Time to re-examine the use of life sentences", 12 November 2007, available at: 71 Memorandum by Thomas Hammarberg, Council of Europe Commissioner for Human Rights, following his visit to France from 21 to 23 May 2008; CommDH(2008)34, 20 November 2008, para 61, available at: 72 General Comment No. 20: Replaces general comment concerning prohibition of torture and cruel treatment or punishment (Art. 7) - Forty-fourth session, 3 October 1992; available at: 73 Article 5(2) of the Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, adopted by the Council of the European Union on 13 June

11 49. Additionally, having in mind the core aspects of this case, we note that with respect to the diplomatic assurances regarding the practice of reducing sentences, the Court is obliged to examine diplomatic assurances in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention Finally, it should be emphasised that it Judges Bratza, Tulken, Barreto, Fura-Sadstroem, Spielmann and Jebens asserted that the Court should clearly affirm that irreducible life sentence is in violation of Article V. CONCLUSIONS 51. Reassuming, the Applicant after his extradition to the United States may be sentenced for life without parole, likely without de iure and de facto possibility - all hope of obtaining an adjustment of his sentence 76. The standard of prohibition of inhuman punishment based on the case-law of the Court, the recommendations of Council of Europe and recent developments in human rights law show that irreducible life sentence may lead to a violation of Article 3 of the Convention. We consider that the instant case is an ample opportunity for the Court to broaden the standard of the Soering v. the United Kingdom case and to affirm that extradition in consequence of which irreducible life sentence is likely to be imposed, amounts to violation of Article 3 of the Convention. The draft of the opinion was prepared by Lin Ting Li (Columbia University, J.D. Expected) and Maria Radziejowska, (LL.M., University of Amsterdam) interns at Helsinki Foundation for Human Rights under supervision Adam Bodnar, Ph.D. (LL.M, Central European University, Budapest). Adam Bodnar Secretary of the Board of the Helsinki Foundation for Human Rights 74 Soldatenko v. Ukraine, (Application no. 2440/07), judgement of 23 October 2008, para 69; see Chahal v. the United Kingdom, judgement of 15 November 1996, para 105; Saadi v. Italy, (Application no /06), judgement of 28 February 2008, para Kafkaris v. Cyprus, (Application no /04), judgement of 12 February 2008, concurring opinion, p. 64, partly disssenting opinion, p. 70, para Leger v. France, (Application no /02), judgement of 11 April 2006, para. 92; Kafkaris v. Cyprus, (Application no /04), judgement of 12 February 2008, para