European Court of Human Rights Takes on Extraditions to the U.S.: Trabelsi v. Belgium

The European Court of Human Rights released its opinion in the case of Trabelsi v. Belgium on yesterday, holding that by extraditing Nizar Trabelsi to the United States, where he possibly faced an irreducible life sentence, Belgium had violated Trabelsi’s rights under Article 3 of the European Convention on Human Rights (which states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”). As the opinion describes, Nizar Trabelsi, a Tunisian national, was arrested in Belgium in the days following the attacks of September 11, 2001. Based on, among other things, the “false passports, automatic weapons and ammunition, . . . chemical formulae [for explosives], and a detailed plan of the United States Embassy” that were found during the execution of a search warrant (pg. 2), Trabelsi pled guilty to the offenses of criminal conspiracy, destruction by explosion, possession of combat weapons, and belonging to a private militia. The court stated that Trabelsi “attempted to commit one of the most serious crimes since Belgian independence” (pg. 2), and he was sentenced in September 2003 to ten years imprisonment. In November 2007, the United States government issued an arrest warrant for Trabelsi on charges that he conspired with and provided support to Al Qaeda in order to kill U.S. nationals and use weapons of mass destruction to destroy property used by the U.S. government in Europe. The United States submitted an extradition request to the Belgian government in April 2008. As the case wound its way through the Belgian system, the U.S. Department of Justice provided a series of assurances in accordance with Belgian law, including that Trabelsi would only be detained in civilian facilities, that he would not be tried before a military commission, and that he did not face an irreducible life sentence. The Minister of Justice ultimately issued the extradition order in November 2011. Trabelsi appealed this decision within Belgium and to the European Court of Human Rights (ECHR). While the Belgian tribunal upheld the order, the ECHR granted Tarbelsi’s request for an interim order blocking extradition on December 6, 2011. Over the course of almost two years, the Belgian government submitted four requests to have the order lifted, all of which the ECHR either denied or “postponed indefinitely” (pg. 13). In October 2013, the ECHR informed the Belgian government that the chamber assembled to examine the case had decided to relinquish it to the Grand Chamber. By this time, however, Belgium had already extradited Trabelsi to the United States, where he is currently in prison in Virginia. Having recited this background, the court then moves into the merits of the case and begins by dismissing Belgian’s argument that Trabelsi’s complaint was inadmissible because he had not first exhausted all domestic remedies when it was submitted. The ECHR reasons that because Trabelsi had completed all judicial phases of the process, he was able to bring the complaint, even though the administrative phases were still underway. The ECHR then moves on to Trabelsi’s allegation that his extradition violated Article 3 of the Convention and begins by examining the scope of a country’s obligations under Article 3. Though a life sentence is not necessarily an Article 3 violation (assuming it is not grossly disproportionate to the crime committed), a life sentence that was de jure and de facto irreducible does raise issues. For a sentence to be reducible, it must be subject to review to consider whether “detention could no longer be justified on legitimate penological grounds” (pg. 27). Furthermore, a prisoner was also entitled to know at the beginning of his sentence what he had to do to win release. While previous precedent had applied these principles at the moment the life sentence was imposed, the court reasons that in the extradition context, a state party to the Convention must assess the risk of an Article 3 violation and cannot extradite if doing so is “likely to have consequences in the requesting country which are incompatible with Article 3” (pg. 29). The court then applies these principles to Trabelsi’s case and finds that though a discretionary life sentence would not be grossly disproportionate, Belgium has violated Article 3 by extraditing Trabelsi when he risked facing an irreducible life sentence. The court acknowledges the United States’s submissions that even if Trabelsi received a life sentence, he had several options for having it reduced, including his cooperation with authorities in the prosecution of a third party, humanitarian reasons, or Presidential pardon. However, the court noted that at no point did the United States provide “assurance that the applicant would be spared a life sentence or that . . . [a life sentence] would be accompanied by a reduction or commutation in sentence” (pg. 32; emphasis added). Overall, it deemed the American explanations of sentencing provisions and Presidential pardons “very general and vague and . . . [not] sufficiently precise” (pg. 32). Ultimately, the court concludes that the American procedures fail to meet the requirements for reducibility because

none of the procedures provided for amounts to a review mechanism requiring the national authorities to ascertain, on the basis of objective, pre-established criteria of which the prisoner had precise cognisance at the time of imposition of the life sentence, whether, while serving his sentence, the prisoner has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds . . . . (pg. 32).

Therefore, because Belgium “expos[ed] [Trabelsi] to the risk” of an irreducible life sentence by extraditing him, the court finds Belgium has violated Article 3. The court then quickly finds that Belgium has violated the court’s interim order without justification, and in so doing, has made it more difficult for Trabelsi to exercise his right to petition for relief and has thus “failed to honour the obligations incumbent on it under Article 34 of the Convention” (pg. 36). Even more quickly, the court dismisses several of Trabelsi’s last claims against Belgium, including that his detention in Belgium had violated Article 3, that he had been denied the benefits of a fair trial, that his extradition violated principles of double jeopardy (or ne bis in idem), and that Belgium was interfering with his right to a family life. The court awards Trabelsi EUR 60,000 in non-pecuniary damage and an additional sum of EUR 30,000 to cover expenses. Judge Yudkivska filed a concurring opinion expressing her “serious hesitations” with the “elusive” reasoning in the majority’s judgment (pg. 43). The judge disagreed with the majority’s demands for procedural specificity and would have found the U.S. government’s assurances adequate. However, given that in one letter to the Belgian government, the Department of Justice stated that a Presidential pardon was “only a theoretical possibility in Trabelsi’s case,” the judge felt compelled to vote in favor of an Article 3 violation.