CASE OF BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM

Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Degrading treatment;Inhuman punishment;Inhuman treatment;Extradition) (United States of America)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Scott Baker

The applicants have been indicted on various charges of terrorism in GPE . They are the subject of CARDINAL separate sets of criminal proceedings in GPE federal courts . The first set concerns the first applicant , Mr PERSON , and the third applicant , Mr PERSON . The second set of proceedings concerns the second applicant , PERSON , and the fourth applicant , PERSON . The third set of proceedings concerns the fifth applicant , PERSON , and the sixth applicant , Mr PERSON .

The details of each indictment are set out below . On the basis of each indictment , ORG requested each applicant ’s extradition from GPE . Each applicant then contested his proposed extradition in separate proceedings in the NORP courts .

The indictment against the first applicant was returned by a Federal Grand Jury sitting in GPE on DATE . It alleges the commission of CARDINAL felonies DATE : conspiracy to provide material support to terrorists ; providing material support to terrorists ; conspiracy to kill , kidnap , maim or injure persons or damage property in a foreign country ; and money laundering . On DATE , a similar indictment was returned against the third applicant , save that the charge of money laundering was not included . For both indictments , the material support is alleged to have been provided through a series of websites , CARDINAL of whose servers was based in GPE . The charge of conspiracy to kill , kidnap , maim or injure persons or damage property in a foreign country is based on CARDINAL allegations : first , that the websites exhorted NORP to travel to GPE and GPE to defend those places ; and second , that classified ORG plans relating to a GPE naval battle group operating in LOC in LOC had been sent to the website . The plans are alleged to have discussed the battle group ’s vulnerability to terrorist attack .

The indictment against the fourth applicant was returned on DATE by a Federal Grand Jury sitting in LOC of GPE . It charges him with CARDINAL different counts of criminal conduct . These cover CARDINAL sets of facts .

NORP The first group of charges relates to the taking of CARDINAL hostages in GPE in DATE , CARDINAL of whom died during a rescue mission conducted by NORP forces . The indictment charges the fourth applicant with conspiracy to take hostages and hostage taking and relates principally to his contact with the leader of the hostage takers , PERSON , before and during the events in question .

The second group of charges relates to the conduct of violent jihad in GPE in DATE . The indictment alleges that the fourth applicant provided material and financial assistance to his followers and arranged for them to meet ORG commanders in GPE . In this respect , CARDINAL counts of the indictment charge him with providing and concealing material support and resources to terrorists and a foreign terrorist organisation and conspiracy thereto . A further count charges him with conspiracy to supply goods and services to the ORG .

The third group of charges relates to a conspiracy to establish a jihad training camp in GPE , GPE DATE . CARDINAL counts charge the fourth applicant with providing and concealing material support and resources to terrorists and providing material support and resources to a foreign terrorist organisation ( ORG ) ; a further CARDINAL counts charge him with conspiracy to the main CARDINAL counts .

On DATE , a superseding indictment was returned which named and indicted the second applicant as the fourth applicant ’s alleged co - conspirator in respect of the Bly , GPE charges ( thus charging the second applicant with the same CARDINAL counts as those faced by the fourth applicant in respect of the Bly , GPE conspiracy ) . On DATE a second superseding indictment was returned , which indicted a third man , PERSON , as a co - conspirator in respect of the Bly , GPE charges .

Mr PERSON was extradited to GPE from GPE in DATE . On DATE , Mr ORG was convicted on CARDINAL counts relating to the Bly , GPE jihad camp conspiracy . He was also convicted of a further CARDINAL counts relating to the operation of terrorist websites . On DATE , after submissions from Mr Kassir and his defence counsel , the trial judge sentenced Mr GPE to the maximum permissible sentence on each count . As a life sentence was the maximum permissible sentence on CARDINAL of the counts , Mr Kassir had effectively been sentenced to a term of life imprisonment .

In DATE a Federal Grand Jury sitting in LOC of GPE returned an indictment against PERSON and DATE other individuals , including the applicants , inter alia alleging various degrees of involvement in or support for the bombing of the GPE embassies in GPE and GPE in DATE .

The fifth applicant is charged with CARDINAL counts : conspiracy to kill GPE nationals , conspiracy to murder , conspiracy to destroy buildings and property , and conspiracy to attack national defence utilities .

The sixth applicant is charged with CARDINAL counts of criminal conduct , including CARDINAL counts of murder .

The first applicant was arrested in GPE on DATE . NORP On DATE , ORG in GPE issued Diplomatic Note No . CARDINAL . Where relevant , the note provides :

“ Pursuant to LAW and the Government of GPE and GPE , the Government of GPE hereby assures the Government of GPE that GPE will neither seek the death penalty against , nor will the death penalty be carried out , against PERSON upon his extradition to GPE .

The Government of GPE further assures the Government of GPE that upon extradition to GPE , PERSON will be prosecuted before a ORG 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 , PERSON will not be prosecuted before a military commission , as specified in the President ’s Military Order of DATE ; nor will he be criminally prosecuted in any tribunal or court other than a ORG ; nor will he be treated or designated as an enemy combatant ... ”

Similar Diplomatic Notes were provided in respect of the other applicants in the course of their respective extradition proceedings .

At the extradition hearing before the Senior District Judge , the first applicant argued , inter alia , that , notwithstanding the Diplomatic Note , the risk of the death penalty being imposed remained since he could be tried on a superseding indictment . He further argued that he remained at risk of being designated as an “ enemy combatant ” pursuant to ORG and that he remained at risk of extraordinary rendition to a third country . He also argued that there was a substantial risk that he would be subjected to special administrative measures whilst in detention in a federal prison , which could involve , among other measures , solitary confinement in violation of LAW and restrictions on communication with lawyers in violation of LAW .

In a decision given on CARDINAL DATE , the Senior District Judge ruled that the extradition could proceed and that , inter alia , the first applicant ’s extradition would not be incompatible with his rights under the LAW . The Senior District Judge found that , on the basis of ORG , there was no risk that the death penalty would be imposed , that the applicant would be designated as an enemy combatant , or subjected to extraordinary rendition . The LOC found the application of special administrative measures to be the greatest ground for concern but concluded that , having regard to the safeguards accompanying such measures , there would be no breach of the applicant ’s Convention rights .

NORP The Senior District Judge concluded as follows :

“ This is a difficult and troubling case . The [ first applicant ] is a NORP subject who is alleged to have committed offences which , if the evidence were available , could have been prosecuted in this country . Nevertheless the Government of GPE are entitled to seek his extradition under the terms of LAW and I am satisfied that none of the statutory bars [ to extradition ] apply . ”

Accordingly , he sent the case to the Secretary of ORG for his decision as to whether the first applicant should be extradited .

On DATE , the Secretary of ORG ( Mr PERSON ) ordered the first applicant ’s extradition . The first applicant appealed to ORG ( see paragraphs CARDINAL et seq . below ) .

On DATE the second applicant was arrested in GPE , also on the basis of an arrest warrant issued under LAW of LAW DATE , following a request for his provisional arrest by GPE .

NORP The Senior District Judge gave his decision in the second applicant ’s case on DATE . He concluded that none of the bars to extradition applied , and sent the case to the Secretary of ORG for his decision as to whether the second applicant should be extradited .

On DATE , the Secretary of ORG ordered his extradition . The second applicant appealed to ORG .

The first and second applicants’ appeals were heard together . In its judgment of DATE , ORG rejected their appeals . ORG found that , according to the case - law of this ORG , solitary confinement did not in itself constitute inhuman or degrading treatment . Applying that approach , the evidence before it – which included an affidavit from a ORG official outlining the operation of special administrative measures – did not “ begin to establish a concrete case under LAW ” .

The first and second applicants applied for permission to appeal to ORG . This was refused by ORG on DATE .

GPE formally requested the extradition of the third applicant on DATE . The extradition hearing started on DATE on which date the Senior District Judge determined that the third applicant was accused of offences for which he could be extradited . The case was then adjourned for evidence and argument , inter alia as to whether the third applicant ’s extradition would be compatible with his LAW rights . The hearing resumed on DATE . By now bound by ORG judgment in respect of the first and second applicants , the Senior NORP found that the third applicant ’s extradition would be compatible with the LAW . He accordingly sent the case to the Secretary of ORG for his decision as to whether the third applicant should be extradited .

On DATE , the Secretary of ORG ( PERSON ) ordered that the extradition could proceed . The third applicant appealed against this decision to ORG and also sought judicial review of the alleged failure of ORG and GPE ( “ the ORG ” ) to consider whether he should instead be tried in GPE . He relied on guidance agreed between the Attorney General of GPE and his GPE counterparts for handling criminal cases with concurrent jurisdiction between GPE and GPE ( see paragraph CARDINAL below ) .

On DATE ORG dismissed the third applicant ’s human rights appeal , relying on its ruling in respect of the first and second applicants . In the same judgment , it also dismissed his application for judicial review , finding that the guidance had no application to the third applicant ’s case . The guidance only applied to cases where there had been an investigation of the case in GPE and the ORG had been seized of the case as prosecutor .

On DATE ORG refused to certify a point of law of general public importance which ought to be considered by ORG and also refused leave to appeal to ORG .

GPE requested the fourth applicant ’s extradition on CARDINAL DATE . He was arrested in GPE on DATE .

The extradition proceedings were adjourned when he was convicted of offences in GPE and sentenced to DATE imprisonment ( see PERSON ( PERSON ) v. GPE ( no . CARDINAL ) DATE . ) , no . CARDINAL/CARDINAL , DATE ) . The extradition proceedings resumed when the criminal appeals process was concluded .

When the case came before the Senior District Judge for his decision as to whether the extradition could proceed , the fourth applicant argued , inter alia , that his extradition would give rise to a real risk of a violation of LAW since he would be likely to be detained in a “ supermax ” detention facility such as ORG , ORG , GPE , GPE ( “ ORG ” ) . In this connection , he also relied on his poor health , specifically his type - CARDINAL diabetes , his high blood pressure , the loss of sight in his right eye and poor vision in his left , the amputation of both his forearms ( which frequently led to infections through abrasions ) , psoriasis on much of his body , hyperhydrosis ( excessive sweating ) . A violation of Article CARDINAL , he claimed , would also result from the imposition of special administrative measures .

The Senior District Judge , in his ruling of CARDINAL DATE , rejected all these submissions . In respect of detention at ORG the Senior District Judge found that the fourth applicant ’s poor health and disabilities would be considered and , at worst , he would only be detained there for a relatively short period of time . The Senior District Judge was also not satisfied that special administrative measures would be applied to the fourth applicant but even if they were , he was bound by the ruling of ORG in respect of the first and second applicants . Having concluded that none of the bars to extradition applied , the Senior District Judge sent the case to the Secretary of ORG ( PERSON ) for her decision as to whether the fourth applicant should be extradited . She ordered his extradition on DATE . The fourth applicant appealed to the High ORG against the Secretary of ORG ’s decision and against the decision of the Senior District Judge .

Before ORG , the fourth applicant again relied on his submission that conditions of detention at ORG would not comply with LAW . He also argued that the length of the possible sentence he faced in GPE would be contrary to LAW .

The High Court gave its judgment on DATE , dismissing the fourth applicant ’s appeal . In relation to LAW , ORG found that , if convicted , the fourth applicant would be sentenced to very lengthy terms of imprisonment and that , in all likelihood , a life sentence would be imposed . It found that this , of itself , would not constitute a breach of LAW . On the question of the compatibility of detention at ORG with LAW , ORG relied in particular on the understanding of the prison warden , Mr PERSON , to the effect that if , after a full medical evaluation , it was determined that the fourth applicant could not manage his activities of DATE living , it would be highly unlikely that he would be placed at ORG rather than at a medical centre . Accordingly , there was no risk of a violation of LAW on this ground . However , ORG added :

“ [ T]he constitution of GPE guarantees not only ‘ due PERSON , but it also prohibits ‘ cruel and unusual punishment’ . As part of the judicial process prisoners , including those incarcerated in ORG prisons , are entitled to challenge the conditions in which they are confined , and these challenges have , on occasions , met with success .

We should add that , subject to detailed argument which may be advanced in another case , like Judge PERSON [ the Senior District Judge ] , we too are troubled about what we have read about the conditions in some of the ORG prisons in GPE . 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 DATE in what effectively amounts to isolation may well be held to be , if not torture , then ill treatment which contravenes LAW . This problem may fall to be addressed in a different case . ”

The fourth applicant then applied to ORG for a certificate of points of law of general public importance and for leave to appeal to ORG . On DATE , ORG refused both applications .

ORG requested the fifth and sixth applicants’ extradition from GPE in DATE and DATE respectively .

At his committal hearing before ORG , the sixth applicant contended that extradition was only permitted within the terms of the DATE GPE - UK LAW for offences committed within the jurisdiction of the requesting ORG , and not when that ORG exercised jurisdiction over extra - territorial offences . He further argued that there was “ insufficient evidence ” to prove a prima facie case , which was a requirement for extradition under LAW . As part of that submission , he sought to have excluded CARDINAL anonymous witness statements , which had been provided by CARDINAL informants , “ CS/CARDINAL ” and “ CS/CARDINAL ” , and which ORG relied upon as part of their case against him . It was later revealed that CS/CARDINAL was a Mr PERSON who had given evidence against the certain of the ORG co - defendants during their trial in GPE .

In his ruling of CARDINAL DATE , the District Judge rejected these submissions . He considered that the proper construction of the Treaty did not prevent the exercise of jurisdiction over extra - territorial offences . The District Judge was also satisfied that there were real grounds for fear if the identities of CS/CARDINAL and CS/CARDINAL were revealed . Thus , their anonymous witness statements could be admitted as evidence of a prima facie case . He further found that there was a case for the sixth applicant to answer .

The sixth applicant appealed to ORG by way of an application for a writ of habeas corpus . The application was dismissed on DATE . ORG held that it was necessary to show that the crime in respect of which extradition was sought was alleged to have been committed within the actual territory of GPE . The High ORG was , however , satisfied that CARDINAL overt acts alleged by GPE could be relied on to found territorial jurisdiction in GPE , namely ( a ) the setting up and operating of a secure telephone line in GPE by the sixth applicant through an organisation called ORG ; ( b ) the purchase by the sixth applicant of a satellite phone system in GPE and ( c ) the issuing , in pursuance of the conspiracy of fatwas and jihads , allegedly prepared with the concurrence of the sixth applicant in GPE and elsewhere . ORG also found that GPE had not erred in admitting the evidence of CS/CARDINAL or in finding that there was a prima facie case against the sixth applicant . It did not consider it necessary reach any conclusions in respect of CS/CARDINAL , judging CS/CARDINAL ’s evidence to be “ far the most significant ” .

While the sixth applicant ’s appeal was pending before ORG , a committal hearing before ORG was held in respect of the fifth applicant . The District Judge gave his ruling on DATE in which he reaffirmed the rulings he had made in respect of the sixth applicant and found that there was also a prima facie case against the fifth applicant .

The fifth applicant also appealed to ORG and , on DATE , a differently constituted court dismissed his appeal . Again the High ORG found that the District Judge had not erred in admitting the anonymous evidence of CS/CARDINAL ; that there was sufficient evidence against the fifth applicant for the extradition to proceed , and that GPE had jurisdiction to try him .

Both applicants appealed to ORG . Their appeals were dismissed on DATE . ORG found unanimously that ORG had erred in its finding in respect of jurisdiction : it was sufficient that the offence for which extradition was sought was triable within GPE and an equivalent offence would be triable in GPE . Accordingly , the applicants were liable to extradition to GPE if a prima facie case of conspiracy to murder was established . This was the case for each applicant .

DATE there then followed voluminous representations by the fifth and sixth applicants to the Secretary of ORG as to why they should not be extradited to GPE .

In the course of these exchanges , on DATE the President of GPE designated the sixth applicant as a “ specially designated global terrorist ” , which had the effect of placing him on a list of persons maintained by ORG of the ORG and available on its website . This was done pursuant to Executive Order DATE which enables the NORP assets of any person so designated to be blocked .

Subsequently , on DATE , ORG in GPE issued Diplomatic Note No . CARDINAL , which gave assurances that ORG would neither seek nor carry out the death penalty against DATE applicants . It also gave assurances that they would be tried before a federal court and that they would not be prosecuted by a military commission or designated as enemy combatants . On DATE , ORG Diplomatic Note No . CARDINAL , which assured ORG that , if either applicant were acquitted or completed any sentence imposed or if the prosecution against them were discontinued , GPE authorities would return the men to GPE , if they so requested .

NORP The Secretary of ORG ( PERSON ) rejected the fifth and sixth applicants’ representations on DATE . She found that assurances given by GPE in the Diplomatic Note of DATE could be relied upon and thus that the fifth and sixth applicants were not at risk of the death penalty , indefinite detention or trial by a military commission .

The fifth and sixth applicants also contended that they would not receive a fair trial in GPE owing to the unavailability of defence witnesses and evidence , adverse publicity , the possible imposition of special administrative measures before trial , and the sixth applicant ’s designation as a global terrorist . The Secretary of ORG found none of these claims amounted to a “ flagrant denial of justice ” such as would act as a bar to extradition .

NORP The Secretary of ORG accepted that there was a real possibility that they would be sentenced to life imprisonment if convicted but , relying on the ORG of Lords’ judgment in R ( GPE ) v. Secretary of ORG for ORG ( see paragraphs CARDINAL–CARDINAL below ) , found that this would not amount to a breach of LAW .

NORP The Secretary of ORG also considered that the conditions of the fifth and sixth applicants’ detention in GPE would not violate LAW whether they were subjected to “ special administrative measures ” before trial or detained at ORG after trial . In the fifth applicant ’s case , this conclusion was not affected by the fact that he suffered from a recurrent depressive disorder . There was also no risk that either applicant would be tortured , that evidence obtained by torture would be adduced at trial , or that they would be at real risk of torture as a result of extraordinary rendition or refoulement to a third ORG .

The fifth and sixth applicants sought judicial review of the Secretary of ORG ’s decision in ORG . Before ORG the applicants submitted that , if convicted , they would be detained at ORG in violation of LAW . In rejecting that contention , Lord Justice PERSON , delivering the judgment of the court on DATE , found that the decisions of GPE federal courts in PERSON , PERSON and PERSON v. PERSON ( see paragraphs CARDINAL and CARDINAL below ) demonstrated that there was effective judicial oversight of “ supermax ” prisons such as ORG . The fifth and sixth applicants would also have the possibility of entering ORG ’s “ step down program ” ( see paragraphs CARDINAL–CARDINAL below ) . He concluded :

( CARDINAL ) It is reasonably likely that the claimants will be subjected to [ special administrative measures ] and will be held in ORG following trial .

( CARDINAL ) Neither [ special administrative measures ] ( see PERSON and PERSON ) or life without parole ( see GPE ) cross the article CARDINAL threshold in the present case . Although near to the borderline the prison conditions at ORG , although very harsh do not amount to inhuman or degrading treatment either on their own or in combination with [ special administrative measures ] and in the context of a whole life sentence .

( CARDINAL ) Whether the high article CARDINAL threshold for inhuman or degrading treatment is crossed depends on the facts of the particular case . There is no common standard for what does or does not amount to inhuman or degrading treatment throughout the many different countries in the world . The importance of maintaining extradition in a case where the fugitive would not otherwise be tried is an important factor in identifying the threshold in the present case .

Had the claimants persuaded me that there was no prospect that they would ever enter the step down procedure whatever the circumstances then in my view the article CARDINAL threshold would be crossed . But that is not the case . The evidence satisfies me that the authorities will faithfully apply the criteria [ for entry to the program ] and that the stringency of the conditions it imposes will continue to be linked to the risk the prisoner presents . Further , there is access to the GPE courts in the event that the [ ORG ] acts unlawfully . ”

In respect of the fifth applicant ’s submission that his recurrent depressive illness would deteriorate if extradited , ORG considered that , to the extent that this affected his fitness to stand trial , this was a matter for the GPE authorities and , if he were convicted , the fifth applicant ’s mental health would be an important factor in deciding whether he should be sent to ORG .

ORG also rejected the fifth and sixth applicants’ submissions that they were at real risk of violations of Articles CARDINAL , CARDINAL and DATE of the LAW by virtue of the imposition of special administrative measures , relying on its previous judgment in respect of the first and second applicants ( see paragraph CARDINAL above ) . Having regard to the Diplomatic Note of DATE , ORG found that there was no real risk of refoulement to GPE or GPE by GPE . ORG was also satisfied that GPE would honour the assurances it had given in the Diplomatic Note of DATE . The mere fact that the sixth applicant had been designated as a global terrorist by the President of GPE did not mean he was at risk of a flagrant denial of justice within the meaning of LAW the designation added little to what was already known about him ; it would be made clear to the jury at any trial what had to be proved as regards the indictment .

ORG also rejected the ORG submission that they should be tried in GPE , finding that this was neither viable nor appropriate and that any connection with GPE was “ tenuous indeed ” .

Although ORG refused leave to appeal to ORG , it certified CARDINAL questions of general public importance . The first question was whether prison conditions at ORG were compatible with LAW ; the second question was whether the relativist approach to LAW adopted by the majority of ORG in GPE should apply where the issue under LAW the compatibility of prison conditions with LAW .

On DATE , ORG refused permission to appeal .

At the material time , the applicable bilateral treaty on extradition was the DATE GPE – USA Extradition Treaty ( now superseded by a DATE treaty ) . LAW DATE treaty provided that extradition could be refused unless the requesting ORG gave assurances satisfactory to the requested ORG that the death penalty would not be carried out .

Guidance for handling criminal cases with concurrent jurisdiction between GPE and GPE was signed on DATE by the Attorney General of GPE , Her Majesty ’s Attorney General and also , for its application to GPE , by the Lord Advocate . It sets out a series of measures that prosecutors in each ORG should take to exchange information and consult each other in such cases and to determine issues which arise from concurrent jurisdiction . A case with concurrent jurisdiction is defined as one which has the potential to be prosecuted in both GPE and GPE .

GPE requested the extradition of GPE from GPE to stand trial in GPE on CARDINAL counts of murder in the first degree . In his appeal against extradition , Mr GPE argued that his surrender would violate LAW , on the basis that there was a real risk that he would be subjected to inhuman and degrading treatment in the form of a sentence of life imprisonment without parole .

In giving judgment in ORG ( [ DATE ] EWHC CARDINAL ( Admin ) ) , Lord Justice Laws found that there were “ powerful arguments of penal philosophy ” which suggested that risk of a whole - life sentence without parole intrinsically violated LAW . He observed :

“ The abolition of the death penalty has been lauded , and justified , in many ways ; but it must have been founded at least on the premise that the life of every person , however depraved , has an inalienable value . The destruction of a life may be accepted in some special circumstances , such as self - defence or just war ; but retributive punishment is never enough to justify it . Yet a prisoner ’s incarceration without hope of release is in many respects in like case to a sentence of death . He can never atone for his offence . However he may use his incarceration as time for amendment of life , his punishment is only exhausted by his last breath . Like the death sentence the whole - life tariff is lex talionis . But its notional or actual symmetry with the crime for which it is visited on the prisoner ( the only virtue of the lex talionis ) is a poor guarantee of proportionate punishment , for the whole - life tariff is arbitrary : it may be measured in DATE or DATE according to how long the prisoner has to live . It is therefore liable to be disproportionate – the very vice which is condemned on LAW grounds – unless , of course , the death penalty ’s logic applies : the crime is so heinous it can never be atoned for . But in that case the supposed inalienable value of the prisoner ’s life is reduced , merely , to his survival : to nothing more than his drawing breath and being kept , no doubt , confined in decent circumstances . That is to pay lip - service to the value of life ; not to vouchsafe it . ”

However , and “ not without misgivings ” , he considered that the relevant authorities , including those of this ORG , suggested an irreducible life sentence would not always raise an Article CARDINAL issue .

GPE ’s appeal from that judgment was heard by ORG and dismissed on DATE . Central to the appeal was paragraph CARDINAL of this ORG ’s judgment in GPE v. GPE , DATE , LAW , Series A no . CARDINAL , where the ORG stated that considerations in favour of extradition :

“ .. must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases . ”

A majority of their Lordships , Lord PERSON , ORG and Lord PERSON , found that , on the basis of this paragraph , in the extradition context , a distinction had to be drawn between torture and lesser forms of ill - treatment . When there was a real risk of torture , the prohibition on extradition was absolute and left no room for a balancing exercise . However , insofar as LAW applied to inhuman and degrading treatment and not to torture , it was applicable only in a relativist form to extradition cases .

DATE . Lord PERSON , giving the lead speech , considered the ORG ’s judgment in the case of PERSON v. GPE , DATE , § CARDINAL , Reports of Judgments and Decisions DATE , in which the ORG stated that :

“ It should not be inferred from the ORG ’s remarks [ at paragraph CARDINAL of GPE ] that there is any room for balancing the risk of ill - treatment against the reasons for expulsion in determining whether a ORG ’s responsibility under LAW ) is engaged . ”

Lord PERSON stated :

“ In the context of PERSON , I read this remark as affirming that there can be no room for a balancing of risk against reasons for expulsion when it comes to subjecting someone to the risk of torture . I do not however think that the ORG was intending to depart from the relativist approach to what counted as inhuman and degrading treatment which was laid down in GPE and which is paralleled in the cases on other articles of the LAW in a foreign context . If such a radical departure from precedent had been intended , I am sure that the ORG would have said so . ”

For Lord PERSON , paragraph CARDINAL of PERSON made clear that :

“ ... the desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the ‘ minimum level of severity’ which would make it inhuman and degrading . Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account . ”

He went on to state :

“ A relativist approach to the scope of article CARDINAL seems to me essential if extradition is to continue to function . For example , ORG has decided in PERSON v Scottish Ministers ( DATE ) GPE CARDINAL that in GPE the practice of ‘ slopping out’ ( requiring a prisoner to use a chamber pot in his cell and empty it in TIME ) may cause an infringement of article CARDINAL . Whether , even in a domestic context , this attains the necessary level of severity is a point on which I would wish to reserve my opinion . If , however , it were applied in the context of extradition , it would prevent anyone being extradited to many countries , poorer than GPE , where people who are not in prison often have to make do without flush lavatories . ”

A minority of their Lordships , Lord PERSON and Lord PERSON , disagreed with these conclusions . They considered that the extradition context was irrelevant to the determination of whether a whole life sentence amounted to inhuman and degrading treatment . They found no basis in the text of LAW for such a distinction . Lord PERSON also considered that the ORG , in PERSON and again in PERSON v. GPE [ ORG ] , no . DATE , ECHR DATE ... , had departed from the previous , relativist approach to inhuman and degrading treatment that it had taken in GPE . He stated :

“ There is , I conclude , no room in the GPE jurisprudence for a concept such as the risk of a flagrant violation of article CARDINAL ’s absolute prohibition against inhuman or degrading treatment or punishment ( akin to that of the risk of a ‘ flagrant denial of justice’ ) . By the same token that no one can be expelled if he would then face the risk of torture , so too no one can be expelled if he would then face the risk of treatment or punishment which is properly to be characterised as inhuman or degrading . That , of course , is not to say that , assuming for example ‘ slopping out’ is degrading treatment in GPE , so too it must necessarily be regarded in all countries ( see para CARDINAL of Lord PERSON ’s opinion ) ... ORG has repeatedly said that the LAW does not ‘ purport to be a means of requiring the contracting states to impose LAW standards on other states’ ( Soering , para CARDINAL ) and article CARDINAL does not bar removal to non - Convention states ( whether by way of extradition or simply for the purposes of immigration control ) merely because they choose to impose higher levels or harsher measures of criminal punishment .

Nor is it to say that a risk of article CARDINAL ill - treatment , the necessary pre - condition of an article CARDINAL bar upon extradition , will readily be established . On the contrary , as ORG reaffirmed in PERSON at para CARDINAL :

‘ [ T]he ORG has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill - treatment . . . in the event of a person being removed from the territory of the respondent ORG by extradition , expulsion or any other measure pursuing that aim . Although assessment of that risk is to some degree speculative , the ORG has always been very cautious , examining carefully the material placed before it in the light of the requisite standard of proof . . . before . . . finding that the enforcement of removal from the territory would be contrary to LAW . As a result , since adopting the PERSON judgment it has only rarely reached such a conclusion.’ ”

Therefore , for Lord PERSON , if a mandatory life sentence violated LAW in a domestic case , the risk of such a sentence would preclude extradition to another country .

NORP However , despite these different views , none of ORG found that the sentence likely to be imposed on Mr GPE would be irreducible ; having regard to the commutation powers of the Governor of GPE , it would be just as reducible as the sentence at issue in GPE v. GPE [ ORG ] , no . CARDINAL , ECHR DATE .... All five Law Lords also noted that , in GPE , the ORG had only said that the imposition of an irreducible life sentence may raise an issue under LAW . They found that the imposition of a whole life sentence would not constitute inhuman and degrading treatment in violation of LAW , unless it were grossly or clearly disproportionate . Lord PERSON in particular noted :

“ Having puzzled long over this question , I have finally concluded that the majority of ORG [ in GPE ] would not regard even an irreducible life sentence — by which , as explained , I understand the majority to mean a mandatory life sentence to be served in full without there ever being proper consideration of the individual circumstances of the defendant ’s case — as violating article CARDINAL unless and until the time comes when further imprisonment would no longer be justified on any ground — whether for reasons of punishment , deterrence or public protection . It is for that reason that the majority say only that article CARDINAL may be engaged . ”

Lord PERSON added that this test had not been met in GPE ’s case , particularly when the facts of the murders for which he was accused , if committed in GPE , could have justified a whole life order . However , Lord PERSON considered that , in a more compelling case , such as the mercy killing of a terminally ill relative , this ORG “ might well judge the risk of ill - treatment to be sufficiently real , clear and imminent to conclude that extradition must indeed be barred on article CARDINAL grounds ” .

Finally , Lord PERSON , Lord PERSON , ORG and Lord PERSON all doubted Lord Justice Laws’ view that life imprisonment without parole was lex talionis . Lord PERSON , ORG and Lord PERSON did not accept his premise that the abolition of the death penalty had been founded on the idea that the life of every person had an inalienable value ; there were other , more pragmatic reasons for abolition such as its irreversibility and lack of deterrent effect . Lord PERSON rejected the view that an irreducible life sentence was inhuman and degrading because it denied a prisoner the possibility of atonement ; once it was accepted that a whole life sentence could be a just punishment , atonement was achieved by the prisoner serving his sentence .

GPE ’s application to this Court was struck out on DATE , the applicant having indicated his wish to withdraw it ( GPE v. GPE DATE . ) , no . CARDINAL/CARDINAL ) .

Section CARDINAL of LAW provides that the LAW guarantees the rights and freedoms set out in it “ subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society . ” LAW provides :

“ Everyone has the right to life , liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice . ”

Section CARDINAL provides :

“ Everyone has the right not to be subjected to any cruel and unusual treatment or punishment . ”

In GPE v. PERSON [ DATE ] S.C.R. CARDINAL , PERSON and another ( the respondents ) were to be extradited from GPE to the ORG of GPE to stand trial for murders allegedly committed when they were both DATE . Before making the extradition order the NORP Minister of ORG had not sought assurances that the death penalty would not be imposed . ORG found that the remoteness between the extradition and the potential imposition of capital punishment meant the case was not appropriately considered under section CARDINAL but under section CARDINAL . However , the values underlying section CARDINAL could form part of the balancing process engaged under section CARDINAL . The extradition of the respondents would , if implemented , deprive them of their rights of liberty and security of person as guaranteed by section CARDINAL . The issue was whether such a deprivation was in accordance with the principles of fundamental justice . While extradition could only be refused if it “ shocked the conscience ” an extradition that violated the principles of fundamental justice would always do so . The court balanced the factors that favoured extradition against those that favoured seeking assurances that the death penalty would not be sought . The latter included the fact that a degree of leniency for youth was an accepted value in the administration of justice , even for young offenders over DATE . The court concluded that the objectives sought to be advanced by extradition without assurances would be as well served by extradition with assurances . The court held therefore that assurances were constitutionally required by section CARDINAL in all but exceptional cases .

In GPE v. PERSON ; GPE v. GPE , [ DATE ] CARDINAL SCR CARDINAL , the appellants were to be extradited to GPE to face charges of fraud ( the PERSON case ) or trafficking of cocaine ( the GPE case ) . The appellants in the GPE case had argued that , if extradited and convicted they could receive sentences of DATE to life without parole and this would “ shock the conscience ” . In dismissing the appeals , ORG affirmed the balancing approach laid down in PERSON to determining whether potential sentences in a requesting state would “ shock the conscience ” . The harsher sentences the appellants might receive if convicted in GPE were among the factors militating against their surrender but they had offered no evidence or case - law to back up their assertions that the possible sentences would shock the conscience of NORP . The factors favouring extradition far outweighed those that did not .

DATE . DATE ORG where relevant provides that “ no one shall be subjected to torture or to cruel , inhuman or degrading treatment or punishment . ” ORG most recent general comment on DATE ( No . DATE , of DATE ) states the ORG ’s view that : “ 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 . ” ( see also PERSON v. GPE , ORG , DATE ; A.J.R. v. GPE , ORG , CARDINAL DATE ) .

Article CARDINAL § QUANTITY of the DATE United Nations Convention against Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment ( “ ORG ” ) provides :

“ ORG shall expel , return ( " refouler " ) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture . ”

LAW provides :

“ 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 . ”

The above guidelines ( adopted by ORG on DATE ) contain the following provisions on refoulement and extradition :

“ XII . Asylum , return ( ‘ refoulement’ ) and expulsion

It is the duty of a ORG that has received a request for asylum to ensure that the possible return ( “ refoulement ” ) of the applicant to his / her country of origin or to another country will not expose him / her to the death penalty , to torture or to inhuman or degrading treatment or punishment . The same applies to expulsion .

XIII . Extradition

Extradition is an essential procedure for effective international co - operation in the fight against terrorism .

Extradition may not be granted when there is serious reason to believe that :

( i ) the person whose extradition has been requested will be subjected to torture or to inhuman or degrading treatment or punishment ... ”

Article CARDINAL § CARDINAL of GPE ORG provides :

“ No one may be removed , expelled or extradited to a ORG where there is a serious risk that he or she would be subjected to the death penalty , torture or other inhuman or degrading treatment or punishment . ”

ADX GPE , a so - called “ supermax ” prison , is CARDINAL of a number of detention facilities at FAC , GPE , GPE . The parties have provided a great deal of evidence in respect of conditions of detention at ORG and general facilities at ORG . The applicants have also submitted general evidence on “ supermax ” prisons and their effects on prisoners . The evidence submitted may be summarised as follows .

The Government submitted a series of declarations , which had been prepared specifically for the present proceedings by officials at ORG / ORG . Thereafter , in reply to a series of questions put by ORG in respect of the number of inmates entering ORG ’s “ step down program ” , CARDINAL further letters were provided by ORG ( see paragraphs CARDINAL–CARDINAL below ) .

Mr PERSON , the associate warden of ORG , outlined the regime which was in place at the special security unit ( ORG ) for inmates who were subjected to special administrative measures . All cells were single occupancy , had natural light and measured QUANTITY ( QUANTITY ) . Showers were not in - cell but on a shared range .

Inmates in H Unit were part of the special security unit program , which had CARDINAL phases that inmates could work through .

In phase CARDINAL , the “ baseline ” phase , inmates had CARDINAL non - legal telephone calls DATE , CARDINAL social visits , access to a commissary list and art and hobby craft items , and escorted shower time CARDINAL times a week . They had TIME per week of out - of - cell recreation time ( increased from TIME per week in DATE ) . As of DATE , CARDINAL inmates were in phase one .

In phase CARDINAL , conditions were the same save that CARDINAL non - legal telephone calls DATE were permitted , the commissary list was expanded and inmates were permitted to go to the shower unescorted , CARDINAL times per week . CARDINAL inmates were in phase CARDINAL .

In phase CARDINAL , group recreation was permitted DATE ( for a minimum of TIME per day , in groups of CARDINAL ) and the number of non - legal telephone calls increased to CARDINAL . Inmates ate CARDINAL meal together and engaged in recreational activities together for TIME per day . Access to showers was unrestricted and the commissary list was further expanded . CARDINAL inmates , who had all been convicted of terrorist activity , had progressed to phase CARDINAL .

Advancement through the phases was authorised by ORG , whose DATE reviews the inmate attended . The ORG ’s task was to determine whether an inmate could function with additional privileges without posing a security or safety risk . Advancement was subject to various factors including good conduct , participation in programmes recommended by the ORG , positive behaviour and respectful conduct and positive overall institutional adjustment .

Recreation alternated DATE between outside and inside recreation . Outdoor recreation took place in adjacent individual recreation areas , which allow an inmate full visual access to the recreation yard and other inmates . Conversations could be carried on in a normal tone of voice and most inmates spent the majority of their recreation time talking to other inmates . Each individual outdoor area measured QUANTITY ( QUANTITY by QUANTITY ) and contained pull - up bars and footballs . Individual indoor areas measured QUANTITY by QUANTITY . Recreation had only been cancelled once in DATE for security reasons .

There was no limit on ORG correspondence with family members and special administrative measures could be modified to allow correspondence beyond the immediate family . There were also no limits on correspondence with legal representatives and access to a law library for TIME at a time . Inmates received a free , DATE copy of ORG . They had access to CARDINAL television channels and CARDINAL FM radio channels . They could speak to inmates in adjacent cells using the air ventilation as a voice conduit . They had regular contact with prison staff – a member of ORG visited every inmate DATE – and there were visits from medical , education , religious service and psychology staff , including CARDINAL NORP speakers . Inmates could request to speak with an officer at any time .

Mr Milusnic also outlined the criteria and procedures for placement at ORG . An inmate either had to : ( i ) create a security risk at other correctional facilities ; or ( ii ) as a result of his or her status , be unable to be safely housed in the general population of another institution . Referral to ORG was initiated by the staff at the inmate ’s current institution . If the warden of that institution , the relevant regional director and the ORG ’s designation centre all concurred , a hearing took place . The inmate was given written notice CARDINAL prior to the hearing . After the hearing , a report with a recommendation was prepared and given to the inmate . The final decision was taken on the basis of the report by an Assistant Director of ORG , with the possibility of appeal to the chief of the designation centre and thereafter ORG .

PERSON is the Unit Manager for ORG at ORG . She provided CARDINAL declarations .

Her first declaration outlined ORG procedures for review of the status of inmates . There was an initial classification upon arrival at a new ORG institution , which took place at a meeting attended by the inmate and which defined , inter alia , the work and educational programmes the inmate would follow , his or her release plans , and security / custody levels . Thereafter , there were DATE program reviews ( including progress review reports , which were signed by the inmate and the Unit Manager ) and more detailed , DATE progress reports , which were also made available to the inmate .

In her declaration PERSON also outlined the different levels of security in ORG units and the step down program . The units followed a “ stratified ” system of housing from ORG to the Intermediate , ORG and ORG . It would take an inmate a minimum of DATE to work through the system : the minimum stay in each unit was DATE in a ORG , DATE in ORG , CARDINAL in ORG and CARDINAL in ORG . Specific conditions in each unit were as follows .

ORG cells were QUANTITY ( QUANTITY ) plus a sallyport ( exit area ) of QUANTITY . Showers were within the cells . There was a window with natural lighting and inmates could control the lighting in their cell via a dimmer switch . Lights on the range were switched off at night , but , as in all federal prisons , were briefly turned on for CARDINAL cell counts during TIME . Meals were delivered in - cell . Inmates received TIME telephone calls and CARDINAL social visits per month . It was possible and permissible for inmates to talk to each other in their cells via the ventilation system or during their out - of - cell recreation .

Inmates had TIME out - of - cell exercise DATE in single - cell recreation areas , some of which were grouped together on large recreation yards . PERSON gave the sizes of the QUANTITY types of outdoor individualised recreation areas QUANTITY ( QUANTITY ) . The size of the indoor areas was QUANTITY ( QUANTITY ) . Recreation privileges could be restricted for violations of rules and regulations . Restrictions on outdoor recreation were in DATE increments ( DATE for a first offence , CARDINAL for a second offence and so on ) .

ORG cells were QUANTITY and did not have a sallyport or shower . There was a window with natural lighting ; cell doors faced out onto a range . Inmates were assigned to a group of CARDINAL inmates with whom they recreated . Meals were provided to inmates CARDINAL group at a time , meaning each group was allowed out of their cells to collect their meals in the range . Inmates received CARDINAL TIME telephone calls and CARDINAL social visits per month . Showers stalls were on the range , where inmates could shower any time they were out on the range .

Transitional Units had similar conditions to Intermediate Units save that inmates were assigned to groups of CARDINAL inmates . They received twentyone TIME of out - of - cell recreation per week in their assigned group on the range or in a large recreation yard . Meals were consumed in groups on the range . Inmates were unrestrained when out of their cells . They received an extra TIME telephone call per month and could leave the unit unrestrained but escorted to purchase items from the commissary .

ORG was located at another penitentiary at ORG GPE . As in the ORG and Transitional Units , inmates ate their meals and recreated within their assigned group . They received CARDINAL and a half hours’ out - of - cell recreation time per week , and CARDINAL visits and TIME of telephone calls per month .

In the General Population , Intermediate and Transitional Units , access to television , radio and books , contact with prison staff and rules on correspondence were as outlined by PERSON .

The rules governing the step down program were set out in an “ institution supplement ” , which had been updated in DATE . An inmate ’s placement in and advancement through the step down program were reviewed DATE , subject to the minimum periods in each unit , set out above , and other criteria such as participation in defined programmes , positive behaviour and overall institutional adjustment . According to the updated supplement , mitigation of the original reason for placement at ORG was no longer a factor which was considered , but the Step Down Screening Committee , which made decisions on advancement , could have regard to the initial reasons for placement at ORG and other safety and security factors . The final decision was one for the Warden . Any negative decision had to be reasoned ( unless providing reasons would pose a threat to individual safety or institutional security ) and was subject to appeal through the ORG ’s administrative remedy programme . Since the implementation of the updated supplement , there had been a PERCENT increase in movement of inmates from the CARDINAL General Population Units to ORG and a PERCENT increase in movement from the ORG to ORG . Inmates had also completed the programme and been transferred out of ORG . This included NORP inmates .

Mr PERSON is ORG Supervising Attorney at ORG . His declaration outlined the application of special administrative measures . These measures were rare : of CARDINAL ORG inmates , CARDINAL were subjected to them ; CARDINAL of the CARDINAL were in ORG at ORG . Special administrative measures could be challenged through the ORG ’s administrative remedy programme , which led to a review of the need for the measures and which involved consultation with other agencies such as the ORG . This process had , on occasion , led to the modification of certain special administrative measures such as allowing greater communication for inmates with the outside world .

NORP The psychologist assigned to ORG , PERSON , outlined the psychological and psychiatric care available at the prison . The preference was to treat inmates with mental health problems in situ rather than in hospitals where this was possible . Care was provided by one psychiatrist and CARDINAL psychologists who made regular rounds through the housing units at ORG . Various treatment programs were available and inmates who needed psychotropic medication were seen regularly by a psychiatrist . Contrary to assertions previously made by the applicants , video - conferencing was not ordinarily used to assess an inmate ’s mental health . The main mental health disorders such as bipolar affective disorder , depression , post - traumatic stress disorder and schizophrenia would not preclude a designation to ORG and could be managed successfully there . Conditions of confinement were largely determined by security needs and would be modified based on mental illness only if the inmate ’s mental status warranted such a change . However , if necessary , inmates could be referred to one of ORG for acute psychiatric care . Inmates who would be considered “ seriously mentally ill ” would not be housed at ORG but at FAC . All new inmates at ORG received an initial psychological evaluation and , if necessary , follow - up assessment and treatment planning . Thereafter , the psychological department monitored any treatment needs such as medication or modification to an inmate ’s housing , work or program assignment .

The prison chaplain at ORG , PERSON , stated that an imam was available to inmates DATE and would speak to inmates at their cell door . The chaplain had also significantly expanded the NORP section of the religious library at the prison , which included QUANTITY LANGUAGE language books . There were also CARDINAL videos and DVDs on ORG . ORG provided NORP - faith programming through its closed - circuit television channel , including DATE of NORP programming on DATE and recitations of the DATE on DATE and DATE TIME . Inmates had access to a halal diet ; special arrangements were made for meals during DATE . Although there could be no formal congregational prayer for any faith group , NORP inmates could perform the ORG ( call to prayer ) and the Salat ( CARDINAL DATE prayers ) in their cells ; they could also have access to prayer rugs , prayer oil , prayer beads and religious headgear in their cells .

PERSON , ORG at ORG , stated that H unit inmates had access to approximately CARDINAL books with no limit on the number of books an inmate could borrow . They had access to a law library for TIME at a time , including access to electronic databases . There were also educational courses .

In the course of proceedings before the ORG , the respondent Government were asked to provide information as to :

( i ) how long inmates in the ORG program had spent at ORG and how long they had been in each phase of the program ;

( ii ) how many inmates were in each phase of the step down program ;

( iii ) how long each inmate had spent at ORG and how long they had been in each phase of the program ; and

( iv ) how many inmates had completed the program , how long they had spent at ORG and how long they had been in each phase of the program

The questions were forwarded to GPE authorities . By letter dated DATE , ORG stated that there were CARDINAL inmates in ORG ’s ORG . The ORG program could house up to CARDINAL inmates . There were CARDINAL inmates in phase I , CARDINAL in phase II and CARDINAL in phase III . For the step down program , CARDINAL inmates were in ORG , CARDINAL in ORG and CARDINAL in ORG . ORG stated that ORG obligations under GPE law prevented disclosure of information as to the length of time inmates had spent at each stage of the CARDINAL programs .

By letters dated DATE and DATE , ORG clarified that the questions put by ORG were not intended to obtain information on specific inmates but rather to provide meaningful assistance as to : the length of time an inmate was likely to spend at ORG before being admitted to either program ; how long he was likely to spend in each phase of either program ; and how long he was likely to spend in either program before transfer out of ORG .

On DATE the Agent of the Government of GPE replied , forwarding a letter of DATE from ORG , which set out the results of a statistical analysis conducted by ORG . The analysis was based on a random sample of CARDINAL inmates selected from ORG at ADX and/or each phase of the step down program . On the basis of that sample , an inmate was likely to spend DATE at ORG before being admitted to the Step Down or Special Security Unit programs . The likely times in each phase were : DATE in intermediate , DATE in transition and DATE in pre - transfer . Thus , an inmate was likely to spend DATE in General Population followed by DATE and DATE progressing through either program .

ORG letter of CARDINAL DATE also stressed that , while generally inmates who were subject to special administrative measures were housed in ORG , it was possible for such inmates to be housed at other prisons . Furthermore , if special administrative measure were vacated for an inmate at ORG , he could be transferred from ORG to other prison . This had occurred for CARDINAL of the CARDINAL inmates whose special administrative measures had been vacated .

The applicants submitted general evidence as to the effect of solitary confinement on prisoners and specific evidence as to the prison regime at ORG .

The applicants also provided a report by a psychiatrist , Dr PERSON , which had been prepared specifically for the present proceedings . He considered that a supermax prison regime did not amount to sensory deprivation but there was an almost total lack of meaningful human communication . This tended to induce a range of psychological symptoms ranging from panic to psychosis and emotional breakdown . All studies into the effects of supermax detention had found such symptoms after CARDINAL days’ detention . Once such symptoms presented , it was not sufficient to return someone to normal prison conditions in order to remedy them . If supermax detention were imposed for an indeterminate period it also led to chronic despair . CARDINAL of suicides in GPE prisons involved the PERCENT of prisoners held in such conditions . The effects of supermax conditions were worse for someone with pre - existing mental health problems . There was also evidence of solitary confinement leading to a range of physical illnesses . Dr PERSON ’s conclusions were supported by a number of journal articles by psychologists and criminologists , which the applicants provided .

The specific evidence on ORG included a series of statements by Professor PERSON , Director of ORG at ORG , which had acted for a number of prisoners at ORG . Professor PERSON ’s statements were based on her experience of ORG , the evidence of her clients , and various affidavits which had been prepared for litigation in the federal courts regarding ORG . Her latest statement , of CARDINAL DATE , responded to the CARDINAL declarations submitted by the Government . Her statement , and the other evidence provided by the applicants , may be summarised as follows .

Professor PERSON recalled that one of the former wardens of ORG had publicly described the prison as “ a clean version of hell ” . Professor PERSON stated that , despite the evidence set out in the QUANTITY declarations , conditions at ORG had not changed significantly in DATE . Solitary confinement for long periods continued . CARDINAL lawyer , Mr PERSON , had conducted a survey which had found that CARDINAL inmates of ORG had spent DATE or more in “ lock - down ” conditions there and at previous prisons .

Contact with staff could be QUANTITY per day . Some prisoners were placed on “ single recreation status ” , meaning no one else was permitted to be in adjoining recreation cells at the same time . Recreation privileges could be terminated for minor infractions : CARDINAL prisoner was denied outdoor exercise for DATE for trying to feed crumbs to birds . When he challenged this sanction through the grievance process , it was increased to DATE . Upon further appeal he was told that the decision was not punitive but a managerial strategy to impress upon him the importance of adhering to institutional procedures . Indoor recreations were little more than cages with a single pull - up bar for exercise . There was nothing to do in outdoor recreation cages save to pace up and down . There was limited visibility – all that could be seen was the sky through chain linking . Recreation was frequently cancelled owing to staff shortages .

The evidence also showed that , despite the consensus in the medical profession that prisoners with mental illnesses should not be held in solitary confinement , ORG continued to house seriously mentally ill prisoners , including those with severe schizophrenia and bipolar disorder . Several inmates were too sick to communicate properly with their representatives ; a report had been received of CARDINAL prisoner who was too ill to write , but was living a cell that he had covered in QUANTITY of rubbish and faeces . Several prisoners had stated in witness statements prepared for litigation in GPE courts , that there were mentally ill prisoners at ORG who , because of their conditions , screamed TIME , making sleep difficult for others . General medical facilities were also inadequate : there were CARDINAL doctors for CARDINAL inmates at ORG , and only basic healthcare needs were met . There were also reports from ORG which indicated that force feeding of hunger strikers took place in an unnecessarily punitive and painful way .

Religious services were extremely limited CARDINAL NORP inmate had only seen an imam CARDINAL times – and CARDINAL inmate in a general population unit had received an incident report for intoning the ORG . Books and educational activities were also limited .

For inmates , particularly those subjected to special administrative measures , telephone calls , and social visits were highly restricted and subject to monitoring . Contact with other inmates was generally prohibited and , when they were not , communication between cells could only be carried out by yelling , which was prohibited . Visits were limited to CARDINAL adult visitor at a time , with no physical contact , and required CARDINAL days’ written notice . Evidence in cases brought by inmates who had been subjected to special administrative measures indicated that letters could be limited to CARDINAL sheets of paper per week and certain family members could be refused clearance to write to or speak with an inmate . Special administrative measures could also mean that an inmate was prohibited from watching news channels on television , from receiving recent newspapers or any NORP publications whatsoever ; CARDINAL inmate received his newspaper with whole sections removed . International telephone calls were expensive and liable to disruption .

Despite the adoption of objective criteria for placement at ORG , it remained the case that all those subjected to special administrative measures or convicted of terrorism offences were liable for placement , regardless of their security risk or their disciplinary record in other institutions . The placement hearing was window dressing : CARDINAL hearing officer had carried out CARDINAL hearings and never found an inmate to be unsuitable for placement . There was evidence of hearings taking place post facto , in some cases many years after the transfer to ORG had been carried out . Inmates also received CARDINAL hours’ notice of a hearing and did not have the right to legal representation . There was evidence that hearing officers did not read all of the evidence submitted and based their decisions on unreliable evidence . Inmates did not see all the evidence against them . Professor PERSON also provided declarations by NORP clients , in which they stated that they had never been told the reasons for their placement at ORG and had been sent there after DATE , despite DATE of good conduct in other , much less restrictive prisons , both in GPE and elsewhere .

Although there had been an increase in the number of admissions to the step down program , the fact remained that many inmates were spending significant periods of time in solitary confinement prior to admission , despite having met the criteria for admission for DATE . CARDINAL clients of the ORG had only been admitted to the program after periods of DATE in solitary confinement and only then after commencing litigation against ORG . Another CARDINAL clients had never been admitted , despite their clean disciplinary records and despite periods of DATE at ORG . Even after the changes to procedures governing entry to the program , an inmate ’s original crime continued to serve as the basis for placement at ORG ; thus it was possible for an inmate to be unable to sufficiently mitigate the original reason for placement and so gain admission to the program . Moreover , if an inmate had never been told the reasons for his placement , he could not know what he had to do to gain admission to the program . The program required DATE to complete and a prisoner needed DATE of clear conduct in general population before being eligible for step down . Even eligibility for the program did not mean that a prisoner would be allowed into it .

Conditions in the first phase of the step down program did not differ significantly from general population units . According to CARDINAL inmate , Mr Rezaq , lockdowns occurred frequently in ORG , which meant inmates were confined to their cells , and could DATE or even DATE . Inmates could also be removed from the program at any time without explanation or due process , even for the most minor infractions . Some had been removed from the program without receiving an incident report or were removed after receiving a report for an incident for which they were soon found not guilty . Yet , following such removals , they were either denied re - admission to the program or forced to spend DATE going through it again . The ORG itself had estimated that PERCENT of inmates progressed though the program in DATE . Even successful completion of the step down program might only result in a transfer to a “ communications management unit ” , such as those housed at ORG or ORG , where conditions remained restrictive .

According to Professor PERSON , it was difficult to dispute the evidence provided by the Government on special administrative measures ( owing to restrictions contained in the measures themselves ) but , on the basis of public information , she was able to state that the effect of the measures could amount to solitary confinement , even if an inmate was not detained at ORG . The indefinite prolongation of special administrative measures meant that certain NORP inmates had spent CARDINAL in solitary confinement both before and after trial . Challenging such measures was impossible for inmates without access to legal representation . Legal aid was not available and , even if pro bono legal representation was obtained , ORG could still refuse to give the lawyers the necessary clearance ; this had happened to her ORG .

The applicants also relied on CARDINAL letters from ORG . The first , dated DATE to the Director of ORG , followed a tour the organisation had been given of ORG . The letter expressed concerns that a number of prisoners convicted of terrorism offences had been sent to the prison based on the nature of their crimes and , despite good conduct since their arrival , had remained in general population units and thus outside the step - down programme for DATE . The letter made suggestions for improvement in respect of recreation , mail , telephone use , the library . It also noted that progress was to be made on better meeting ORG religious needs , such as the provision of a full - time imam and commended the educational programmes available through the prison ’s television system . In the letter ORG expressed serious concerns as to ORG inability to do any meaningful exercise in the indoor and outdoor recreation areas , owing to the size of these areas and the lack of any proper equipment . The letter urged the prison authorities to investigate reports of retaliation against prisoners who were on hunger strike in the form of transfer to harsher cells . The letter also said that ORG was extremely concerned about the effects of long - term isolation and highly limited exercise on the mental health of prisoners and criticised reports of rushed consultations between prisoners and psychologists , as well as the fact that evaluations were carried out via closed circuit television .

The applicants obtained a second letter from ORG , dated DATE , which stated that ORG considered conditions at ORG violated the GPE treaty obligations under LAW and LAW . It was unremarkable that “ minor adjustments ” had been made to the regime but it remained in essence CARDINAL of “ long - term and indefinite incarceration in conditions of extreme social isolation and sensory deprivation ” .

LAW provides , inter alia , that cruel and unusual punishments shall not be inflicted .

The LAW requires prison officials to provide humane conditions of confinement , to ensure inmates receive adequate food , clothing shelter and medical care , and to take reasonable measures to guarantee their safety ( PERSON v. PERSON GPE CARDINAL ( DATE ) . Only those deprivations denying the minimal civilized measure of life ’s necessities are sufficiently grave to form the basis of an LAW violation ( ORG v. Seiter CARDINAL GPE CARDINAL , CARDINAL ( DATE ) ; PERSON v. Chapman CARDINAL GPE CARDINAL , CARDINAL ( DATE ) ) . A serious deprivation is necessary , because routine discomfort is part of the penalty inmates pay for their crimes ( ORG v. McMillan CARDINAL GPE CARDINAL ( DATE ) ; PERSON v. PERSON MONEY ( DATE ) ) . Thus , in order to establish that a deprivation violates LAW , a prisoner must satisfy : ( i ) an objective test by demonstrating a sufficiently serious deprivation ; and ( ii ) a subjective test by showing that the conditions of confinement involve the deliberate imposition of pain or deliberate indifference to it ( PERSON , cited above ) .

In GPE v. PERSON CARDINAL GPE CARDINAL ( DATE ) , ORG upheld a lower court order limiting periods of punitive isolated confinement to DATE , in circumstances where the lower court had found that conditions in the prison in question amounted to cruel and unusual punishment . The court recognised that confinement in an isolation cell was a form of punishment which was subject to scrutiny under LAW standards but rejected the submission that indeterminate sentences to punitive isolation always constituted cruel and unusual punishment .

Lower federal courts have found that whether an extended term of solitary confinement violates LAW will depend on the particular facts of each situation , including the circumstances , nature and duration of the confinement ( NORP v. PERSON F.CARDINALd CARDINAL ( CARDINALth Cir . DATE ) ) . Although they have recognised that prolonged conditions of solitary confinement may cause significant psychological damage ( GPE v. ORG , CARDINAL ( CARDINALth Cir . DATE ) ) , the lower courts have , for the most part , rejected LAW claims arising either from conditions of solitary confinement or from periods of confinement to cells for CARDINAL or TIME per day ( see , inter alia , CARDINAL Percenters CARDINAL F.CARDINALd MONEY ( CARDINALth Cir . DATE ) ; In re PERSON . Segregation CARDINAL F.CARDINALd CARDINAL ( CARDINALth Cir . DATE ) ; PERSON v. County of PERSON ORG ( CARDINALth Cir . DATE ) ; PERSON CARDINAL F.CARDINALd . CARDINAL ( QUANTITY . DATE ) ; PERSON v. Romer CARDINAL F.CARDINALd CARDINAL ( CARDINALth Cir . DATE ) ) . However , in PERSON v. PERSON CARDINALd CARDINAL ( DATE ) , the highest level of administrative segregation in the NORP prison system was found to reach levels of psychological deprivation that violated LAW . There , the court found there had been deliberate indifference to a systemic pattern of extreme social isolation and reduced environmental stimulation . The objective test was found to have been met in respect of CARDINAL prisoners who had been in solitary confinement for DATE : PERSON v. Stalder CARDINAL F. Supp . CARDINALd PERSON . , DATE .

Lower courts outside ORG ( which has jurisdiction over ORG ) have ruled that solitary confinement of prisoners with pre - existing serious mental illness can be sufficiently harmful to violate the objective test laid down in ORG , cited above : see PERSON ‘ ORG v. PERSON . DATE ) ( concerning GPE ’s “ supermax ” prison ) and GPE v. PERSON DATE ) ( concerning detention at FAC , GPE ) . However , the subjective test laid down in ORG may not be satisfied unless a plaintiff can show that prison officials attributed any deterioration in his mental state to the conditions of his confinement . Negligence in this respect does not suffice ; deliberate indifference is required ( ORG v. Litscher CARDINAL F. CARDINALd CARDINAL ( CARDINALth Cir . DATE ) ) .

LAW protects against deprivation of life , liberty or property without due process of law . In the context of prison discipline , due process rights are triggered by an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life ( PERSON v. PERSON , cited above ) . This will include transfer to a “ supermax ” security prison ( PERSON v. PERSON CARDINAL GPE DATE ) ) . In PERSON , the court upheld a system which gave notice of the reasons for placement in the supermax prison , an opportunity to reply and multiple levels of review . Periodic review of administrative segregation is also required to ensure that it is not used as a pretext for indefinite confinement ( PERSON v. Helms MONEY ( DATE ) ) .

PERSON has been interpreted by ORG as requiring prisoners to show that their conditions of confinement deviate substantially from the baseline accepted treatment of prisoners ( ORG v. ORG CARDINAL F. CARDINALd CARDINAL ( CARDINALth Cir . DATE ) ) . This test was found not to be satisfied by CARDINAL months’ solitary confinement in PERSON because the prisoner in question had been provided with the ordinary essentials of prison life .

In PERSON v. PERSON DATE ( D.Colo.CARDINAL ) GPE for GPE dismissed a challenge to conditions of detention at ORG and to the imposition of special administrative measures . The plaintiff had limited contact with his family and attorneys and so the court found that the “ severe limitations of ORG confinement ” did not amount to the necessary deprivation required by the objective test .

A constitutional challenge to the imposition of special administrative measures at ORG was also dismissed by ORG in PERSON v. ORG ( NORP Colo. DATE ) ; the case is now the subject of an appeal .

In PERSON v. PERSON , DATE WL CARDINAL ( D.Colo . DATE ) ORG found that detention at ORG for DATE did not amount to atypical and significant hardship , given the availability of social visits and phone calls , the opportunity to converse with other inmates in the recreation areas , and the possibility of transfer out of ORG via the step down program . PERSON was recently followed in PERSON v. PERSON . DATE ( NORP Colo. DATE ) .

In PERSON v. ORG , CARDINAL DATE , ORG held that the plaintiff ’s allegation that detention at ORG had led to a significant deterioration of his mental condition failed to satisfy the objective test in ORG cited above . The plaintiff had not shown that conditions at ORG , even if lonely or uncomfortable , failed to provide basic human necessities ; ORG was a prison and confinement was “ intended to punish inmates , not coddle them ” .

In GPE v. ORG . ORG . CARDINAL ( CARDINALth Cir . ( DATE ) ) ORG for ORG rejected an LAW claim that ORG conditions were cruel and unusual . The plaintiff was isolated in his cell TIME a day for DATE a week and TIME the remaining DATE . However , his minimal physical requirements of food , shelter , clothing and warmth had been met and so the conditions showed neither an “ unquestioned and serious deprivation of basic human needs ” nor “ intolerable or shocking conditions ” . Similar conclusions were reached in GPE v. ORG CARDINAL Fed . CARDINAL ( CARDINALth Cir . CARDINAL ) , PERSON v. ORG . ORG . CARDINAL ( CARDINALth Cir . DATE ) .

In GPE , et al . v. PERSON , et al , the plaintiffs brought LAW claims concerning their placements at ORG at various dates DATE . ORG granted ORG motions for summary judgment : DATE WL CARDINAL ( NORP Colo. DATE ) ; DATE WL CARDINAL ( NORP Colo. DATE ) . The court , following the recommendations of the Magistrate Judge , found that the plaintiff ’s terrorist backgrounds and convictions provided a legitimate penological interest for transferring them to ORG , particularly when CARDINAL of the CARDINAL inmates in federal prisons with international terrorism convictions had been assigned to ORG . The plaintiffs’ conditions of confinement there were not so extreme as to be atypical and significant . The conditions were also different from those in PERSON ( see paragraph CARDINAL above ) in that ORG offered more opportunities for outdoor exercise , interaction with other inmates and educational programmes . There was also insufficient evidence of significant mental harm : there was no evidence that one of the plaintiff ’s depression could be attributed to ORG ; the remainder of the GPE emotional problems were typically experienced by prisoners . Finally , owing to the availability of periodical reviews and the step down program , confinement at ORG was not indeterminate . The plaintiffs have appealed to ORG for ORG , though they have all been transferred out of ORG .

In PERSON v. ORG CARDINAL F Supp . DATE ( DATE ) , before ORG the plaintiff alleges that he has been held in solitary confinement at ORG and other institutions since DATE . ORG has sought summary judgment in its favour in respect of the plaintiff ’s claims . A decision is awaited ; a DATE jury trial was set to begin on DATE .

ORG on human rights and the fight against terrorism contain the following provision :

“ ORG . Detention

A person deprived of his / her liberty for terrorist activities must in all circumstances be treated with due respect for human dignity .

NORP The imperatives of the fight against terrorism may nevertheless require that a person deprived of his / her liberty for terrorist activities be submitted to more severe restrictions than those applied to other prisoners , in particular with regard to :

( i ) the regulations concerning communications and surveillance of correspondence , including that between counsel and his / her client ;

( ii ) placing persons deprived of their liberty for terrorist activities in specially secured quarters ;

( iii ) the separation of such persons within a prison or among different prisons , on condition that the measure taken is proportionate to the aim to be achieved . ”

ORG ( contained in Recommendation Rec(CARDINAL)CARDINAL of ORG ) where relevant , provide as follows :

“ CARDINAL.CARDINAL The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody .

CARDINAL LOC security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control .

CARDINAL NORP As soon as possible after admission , prisoners shall be assessed to determine :

a. the risk that they would present to the community if they were to escape ;

b. the risk that they will try to escape either on their own or with external assistance .

CARDINAL Each prisoner shall then be held in security conditions appropriate to these levels of risk .

CARDINAL The level of security necessary shall be reviewed at regular intervals throughout a person ’s imprisonment . ”

CARDINAL.CARDINAL As soon as possible after admission , prisoners shall be assessed to determine whether they pose a safety risk to other prisoners , prison staff or other persons working in or visiting prison or whether they are likely to harm themselves .

CARDINAL Procedures shall be in place to ensure the safety of prisoners , prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety .

CARDINAL.CARDINAL Every possible effort shall be made to allow all prisoners to take a full part in DATE activities in safety .

CARDINAL It shall be possible for prisoners to contact staff at all times , including during TIME .

CARDINAL ORG health and safety laws shall be observed in prisons .

CARDINAL LOC high security or safety measures shall only be applied in exceptional circumstances .

CARDINAL.CARDINAL There shall be clear procedures to be followed when such measures are to be applied to any prisoner .

CARDINAL NORP The nature of any such measures , their duration and the grounds on which they may be applied shall be determined by national law .

CARDINAL NORP The application of the measures in each case shall be approved by the competent authority for a specified period of time .

CARDINAL NORP Any decision to extend the approved period of time shall be subject to a new approval by the competent authority .

CARDINAL LOC measures shall be applied to individuals and not to groups of prisoners .

CARDINAL.CARDINAL Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule DATE .

CARDINAL ORG , individually or as a group , shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority .

CARDINAL If a request is denied or a complaint is rejected , reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority . ”

The CARDINALst General Report of ORG for the Prevention of Torture , DATE , addressed solitary confinement , which it defined as whenever a prisoner is ordered to be held separately from other prisoners or was held together with CARDINAL or CARDINAL other prisoners . The ORG observed :

“ [ Solitary confinement ] can have an extremely damaging effect on the mental , somatic and social health of those concerned . This damaging effect can be immediate and increases the longer the measure lasts and the more indeterminate it is . The most significant indicator of the damage which solitary confinement can inflict is the considerably higher rate of suicide among prisoners subjected to it than that among the general prison population . ”

The report therefore urged GPE to minimise the use of solitary confinement . It should be proportionate and , the longer it was used , the stronger the reasons for it had to be . It should be lawful and subject to accountability , with the fullest possible reasons given and records kept . It should be necessary and non - discriminatory . It should never be imposed as part of a sentence and , if imposed as a disciplinary sanction , the maximum period should be DATE . In that period , a prisoner should have TIME outdoor exercise per day and other appropriate mental stimulation .

The report also stated that the ORG ’s recommended procedural safeguards should be rigorously followed where administrative solitary confinement was used for preventative purposes , including periodical and external reviews which considered , among other things , whether some of the restrictions imposed were strictly necessary . In such situations , prisoners should have an individual regime plan which attempted to maximise contact with others . Resources should also be made available to attempt to reintegrate the prisoner into the main prison community .

For material conditions in solitary confinement , the ORG stated that the cells used should meet the same minimum standards as those applicable to other prisoner accommodation . These included a cell of QUANTITY , proper cell furnishings , adequate natural and artificial light , heating and ventilation , and sufficiently large exercise areas to allow genuine exertion .

ORG also stated that medical personnel should never participate in decisions on solitary confinement and should report to the prison director whenever a prisoner ’s health was put seriously at risk by solitary confinement .

ORG has found that isolation could in itself constitute inhuman treatment , and a more serious violation could result for someone with a mental disability ( PERSON v. GPE , case CARDINAL , DATE ) .

In PERSON ORG of ORG ) v. GPE , judgment of DATE , ORG stated :

“ ... solitary confinement cells must be used as disciplinary measures or for the protection of persons only during the time necessary and in strict compliance with the criteria of reasonability , necessity and legality . Such places must fulfil the minimum standards for proper accommodation , sufficient space and adequate ventilation , and they can only be used if a physician certifies that the prisoner is fit to sustain it . ( footnotes omitted ) ”

Isolation for TIME a day in a CARDINAL by QUANTITY cell with TIME of sunlight per day was found by ORG to violate LAW ORG in PERSON v. GPE , CCPR / C/CARDINAL/D/CARDINAL/CARDINAL , DATE .

In its recommendations to ORG parties , ORG has recommended that :

- solitary confinement be strictly and specifically regulated by law and applied only in severe circumstances , with a view to its abolition ( Conclusions and Recommendations in respect of GPE , CAT / C / CR/CARDINAL/CARDINAL , at paragraph CARDINAL ) ) ;

- there should be adequate review mechanisms relating to the determination and duration of solitary confinement ( Conclusions and Recommendations in respect of GPE , CAT / C / CR/CARDINAL/CARDINAL at paragraph CARDINAL(d ) ) ;

- solitary confinement for long periods of time may constitute inhuman treatment ( Conclusions and Recommendations in respect of GPE , A/CARDINAL/CARDINAL , paragraph CARDINAL ) .

The United Nations Special Rapporteur for Torture has found that isolation for DATE to TIME per day may amount to ill - treatment and , in certain instances , torture ( Interim Report of DATE , ORG , at CARDINAL ) . The report included a copy of the GPE statement on the use and effects of solitary confinement , which was adopted at ORG in DATE . The statement included the following on the effects of solitary confinement :

“ It has been convincingly documented on numerous occasions that solitary confinement may cause serious psychological and sometimes physiological ill effects . Research suggests that CARDINAL and CARDINAL per cent of prisoners experience adverse symptoms in solitary confinement . A long list of symptoms ranging from insomnia and confusion to hallucinations and psychosis has been documented . Negative health effects can occur after DATE in solitary confinement , and the health risks rise with DATE spent in such conditions .

Individuals may react to solitary confinement differently . Still , a significant number of individuals will experience serious health problems regardless of the specific conditions , regardless of time and place , and regardless of pre - existing personal factors . The central harmful feature of solitary confinement is that it reduces meaningful social contact to a level of social and psychological stimulus that many will experience as insufficient to sustain health and well being . ”

NORP In his Interim Report of CARDINAL DATE , A/CARDINAL/CARDINAL , the current Special Rapporteur for Torture found that where the physical conditions and the prison regime of solitary confinement caused severe mental and physical pain or suffering , when used as a punishment , during pre - trial detention , indefinitely prolonged , on juveniles or persons with mental disabilities , it could amount to cruel , inhuman or degrading treatment or punishment and even torture . The report highlighted a number of general principles to help to guide GPE to re - evaluate and minimise its use and , in certain cases , abolish the practice of solitary confinement . He stated that the practice should be used only in very exceptional circumstances , as a last resort , for as short a time as possible . He further emphasised the need for minimum procedural safeguards , internal and external , to ensure that all persons deprived of their liberty were treated with humanity and respect for the inherent dignity of the human person .

NORP In a letter dated CARDINAL DATE ORG set out the maximum sentences each of the CARDINAL applicants would face if convicted .

The first applicant faces CARDINAL counts of criminal conduct . The first count , conspiracy to provide material support to terrorists , carries a maximum sentence of DATE in prison . The second count , providing material support to terrorists , carries the same maximum sentence . The third count , conspiracy to kill , kidnap , maim or injure persons or damage property in a foreign country , carries a maximum sentence of life in prison . The sentence for the final count , money laundering , is a maximum of DATE . None of the counts contained a mandatory minimum sentence . The trial judge would have the discretion to impose a sentence of no imprisonment up to the maximum penalties , to run consecutively or concurrently .

For the second applicant , ORG stated that the maximum penalty he faced was not CARDINAL years’ imprisonment , as previously stated , but PERCENT imprisonment . This was because the maximum penalties for his offences were lower at the time of the alleged commission of the offences than the current sentences . The correct maximum penalties on each of the CARDINAL counts he faced were : CARDINAL years’ imprisonment for the count of conspiracy to provide material support and resources to terrorists ; DATE for providing material support and resources to terrorists ; DATE for conspiring to provide material support and resources to a designated foreign terrorist organisation ; and DATE for providing material support and resources to a designated foreign terrorist organisation . None of the counts carried a mandatory minimum sentence and , as for the first applicant , the trial judge would have the discretion to impose a sentence of no imprisonment up to the maximum penalties , to run consecutively or concurrently .

For the third applicant , as he is charged with the same offences as the first applicant ( save for the money laundering charge ) , the possible sentences would be the same .

For the fourth applicant , for the GPE hostage - taking counts , the maximum sentences are life imprisonment . For the PERSON , GPE counts , the maximum sentences were the same as those for the second applicant . For the GPE counts , the maximum sentences are CARDINAL years’ imprisonment on each count . None of the counts carried a mandatory minimum sentence and the trial judge ’s discretion in sentencing would be the same as for the first CARDINAL applicants .

For the fifth applicant , the maximum sentences are :

conspiracy to kill GPE nationals – life imprisonment ;

conspiracy to murder – life imprisonment ;

conspiracy to destroy buildings and property – life imprisonment ; and

conspiracy to attack national defence utilities DATE imprisonment . The third count , conspiracy to destroy buildings and property , has a mandatory minimum sentence of DATE imprisonment . Therefore , if convicted on all CARDINAL counts , the trial judge ’s sentencing discretion would range from DATE imprisonment to life .

For the sixth applicant , each of DATE counts of murder with which he is charged carries a mandatory minimum sentence of life imprisonment . The remaining counts carry maximum penalties of DATE and life imprisonment .

ORG letter also set out the applicable law on federal sentencing . In addition to the need to have regard to the purposes of sentencing ( set out in section CARDINAL(a ) of Title CARDINAL of GPE ) , a trial judge had to consider the non - binding sentencing guidelines of ORG , a judicial body . These required the trial judge to have regard inter alia to any mitigating or aggravating factors , the defendant ’s criminal history , any credit for a guilty plea , and the effect of any assistance given to the United States’ authorities .

The letter further confirmed that , as set out at paragraph CARDINAL of the ORG ’s admissibility decision , there were CARDINAL ways a sentence of life imprisonment could be reduced .

First , it could be reduced by the sentencing court upon the motion of the Director of ORG upon a finding that “ extraordinary and compelling reasons warrant such a reduction ” . This generally involved inmates with terminal illnesses .

Second , if a defendant provided substantial assistance in the investigation of a third party , the Government could move within DATE of sentencing for a reduction in the sentence .

Third , if the defendant had been sentenced on the basis of sentencing guidelines which were subsequently lowered by ORG ( the judicial body responsible for promulgating the guidelines ) then the sentencing court could reduce the term of imprisonment .

Fourth , the defendant could request commutation by the President . While commutation was exercised sparingly , such relief had , on occasion , been granted for serious offences involving national security . For example , in DATE President PERSON commuted the sentences of CARDINAL members of the FALN , a violent NORP nationalist organisation responsible for bombings in DATE , who had been convicted of conspiracy to commit armed robbery , bomb - making , sedition and other offences .

Other reductions were available to those sentenced to less than life imprisonment . CARDINAL days’ credit was available DATE for exemplary compliance with institutional disciplinary regulations ; this allowed for release after PERCENT of the sentence had been served . Additionally , any defendant had a statutory right of appeal against sentence to a federal court of appeals and , though rare , to ORG . He could also seek review of the sentencing by the trial judge within DATE of the sentence being passed .

The Department of ORG ’s letter of CARDINAL DATE stated that sentences were normally to run concurrently unless the law provided for consecutive sentences or the trial judge positively ordered that any sentences which were imposed were to run consecutively . In the ORG indictments , the only counts which carried mandatory concurrent sentences were CARDINAL of the counts faced by the sixth applicant ( CARDINAL count of using and carrying an explosive , and CARDINAL counts of using and carrying a dangerous device during the bombing of ORG in GPE and GPE ) .

The letter also underlined ORG view that the federal sentencing guidelines gave the trial judge a broad discretion in sentencing .

The applicants submitted a declaration from PERSON , ORG for ORG . She stated that a trial judge ’s discretion in sentencing was not as broad as ORG had suggested . It remained subject to increases as well as reductions on appeal . The sentencing guidelines allowed for significant increases in sentences if the offences involved terrorism , such that the recommended guideline sentence was the same as the statutory maximum sentence , irrespective of the absence of any prior criminal record . Owing to the possibility of consecutive sentences being imposed , she therefore assessed the possible sentences as :

the first applicant , life plus DATE ;

the second applicant , DATE ;

the third applicant , life plus DATE ;

the fourth applicant , CARDINAL life sentences plus DATE ;

the fifth applicant , CARDINAL consecutive life sentences plus DATE ;

the sixth applicant , numerous consecutive life sentences .

For the mechanisms for sentence reduction , PERSON noted the following . Compassionate release for the terminally ill or disabled was not automatic and was assessed with reference to additional factors such as the nature of the crime committed and the length of time served . Reduction for substantial assistance to the authorities depended on the initiative of the Government , not the court . Subsequent lowering of the relevant sentencing guidelines could only reduce a sentence if ORG made the change retroactive and might not reduce the overall sentence if the person concerned was convicted of other offences and given consecutive sentences . For presidential commutation , the FALN pardons had only been for those who had been convicted of non - violent crimes and had been offered on the condition that the individuals concerned renounce violence . The pardons had nonetheless been very controversial .

LAW has been interpreted by ORG as prohibiting extreme sentences that are grossly disproportionate to the crime ( PERSON v. GPE CARDINAL PERSON . DATE , DATE ( DATE ) ) . There are CARDINAL categories of cases addressing proportionality of sentences .

The first category is a case - by - case approach , , the court compares the sentence in question with sentences for the same crime in the same jurisdiction and other jurisdictions . If that analysis confirms the initial inference of gross disproportionality , a violation of LAW is established .

In the second category of cases , ORG has invoked proportionality to adopt “ categorical rules ” prohibiting a particular punishment from being applied to certain crimes or certain classes of offenders .

Under the first category , ORG has struck down as grossly disproportionate a sentence of life imprisonment without parole imposed on a defendant with previous convictions for passing a worthless cheque ( PERSON v. Helm CARDINAL GPE CARDINAL ( DATE ) ) . It has upheld the following sentences : life with the possibility of parole for obtaining money by false pretences ( PERSON v. PERSON GPE CARDINAL ( DATE ) ) ; life imprisonment without parole for possessing a large quantity of cocaine ( GPE v. GPE CARDINAL GPE CARDINAL ( DATE ) ) ; DATE to life for theft under a “ CARDINAL strikes ” recidivist sentencing law ( PERSON v. GPE CARDINAL GPE CARDINAL ( DATE ) ) ; DATE years’ imprisonment for distributing marijuana ( PERSON v. ORG ( DATE ) ) .

Examples of cases considered under the second category include ORG v. GPE CARDINAL GPE CARDINAL ( DATE ) ( prohibiting capital punishment for rape ) and PERSON v. PERSON MONEY ( DATE ) ( prohibiting capital punishment for juveniles DATE ) . In PERSON , cited above , the court held that LAW also prohibited the imposition of life imprisonment without parole on a juvenile offender who did not commit homicide . The court found that life imprisonment without parole was an especially harsh punishment for a juvenile and that the remote possibility of pardon or other executive clemency did not mitigate the harshness of the sentence . Although a ORG was not required to guarantee eventual freedom to a juvenile offender convicted of a non - homicide crime , it had to provide some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation . The court also held that a sentence lacking in legitimate penological justification ( such as retribution , deterrence , incapacitation and rehabilitation ) was , by its nature , disproportionate . Such purposes could justify life without parole in other contexts , but not life without parole for juvenile non - homicide offenders .

The relevant texts of ORG , ORG and other international legal texts on the imposition and review of sentences of life imprisonment , including the obligations of ORG member GPE when extraditing individuals to GPE where they may face such sentences , are set out in GPE , cited above , at § § DATE . Additional materials before the ORG in the present cases ( and those materials in GPE that are expressly relied on by the parties ) may be summarised as follows .

In his comparative study entitled “ Outlawing Irreducible Life Sentences : LOC on the LOC ? ” , CARDINAL : CARDINAL Federal Sentencing Reporter PERSON DATE , No CARDINAL ( DATE ) , Professor PERSON concluded that the majority of NORP countries do not have irreducible life sentences , and some , including GPE , GPE and GPE , do not have life sentences at all . In GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE , prisoners sentenced to life imprisonment have fixed periods after which release is considered . In GPE CARDINAL such prisoners have no minimum period but it appears they can be considered for release after DATE . In GPE there are provisions for indeterminate sentences for dangerous offenders where release can only follow new scientific evidence that the prisoner was not dangerous , although the provisions have not been used . The study concludes that only the GPE and GPE and GPE have irreducible life sentences .

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ CPT ” ) prepared a report on “ Actual / Real Life Sentences ” dated DATE ( ORG ( DATE ) DATE ) . The report reviewed various ORG texts on life sentences , including recommendations ( DATE ) CARDINAL and DATE , and stated in terms that : ( a ) the principle of making conditional release available is relevant to all prisoners , “ even to life prisoners ” ; and ( b ) that all ORG member ORG had provision for compassionate release but that this “ special form of release ” was distinct from conditional release .

It noted the view that discretionary release from imprisonment , as with its imposition , was a matter for the courts and not the executive , a view which had led to proposed changes in the procedures for reviewing life imprisonment in GPE , GPE and GPE . The report also quoted with approval the ORG ’s report on its DATE visit to GPE in which it stated :

“ [ ORG regards “ actual lifers ” , the ORG has serious reservations about the very concept according to which such prisoners , once they are sentenced , are considered once and for all as a permanent threat to the community and are deprived of any hope to be granted conditional release ” .

The report ’s conclusion included recommendations that : no category of prisoners should be “ stamped ” as likely to spend their natural life in prison ; no denial of release should ever be final ; and not even recalled prisoners should be deprived of hope of release .

Article CARDINAL of LAW of ORG allows for the imposition of a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person . Such a sentence must be reviewed after DATE to determine whether it should be reduced ( LAW .

Article CARDINAL ) of ORG of DATE on the NORP arrest warrant provides :

“ if the offence on the basis of which the NORP 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 ORG has provisions in its legal system for a review of the penalty or measure imposed , on request or at DATE , 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 ORG , aiming at a non - execution of such penalty or measure ... ”

R. v. PERSON and NORP v. PERSON [ DATE ] CARDINAL PERSON , ORG considered the compatibility of a mandatory life sentence as imposed in GPE and GPE with ORG CARDINAL and CARDINAL of the Convention . It found that , in its operation , a mandatory life sentence was not incompatible with either Article .

Such a sentence was partly punitive , partly preventative . The punitive element was represented by the tariff term , imposed as punishment for the serious crime which the convicted murderer had committed . The preventative element was represented by the power to continue to detain the convicted murderer in prison unless and until ORG , an independent body , considered it safe to release him , and also by the power to recall to prison a convicted murderer who had been released if it was judged necessary to recall him for the protection of the public ( Lord PERSON of GPE at § CARDINAL of the judgment ) .

ORG therefore held firstly , that the appellant ’s complaints were not of sufficient gravity to engage LAW and secondly , that the life sentence was not arbitrary or otherwise contrary to LAW . Lord PERSON added :

“ If the ORG had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of DATE , to remain in custody until ( if ever ) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention , I would have little doubt that such a sentence would be found to violate articles CARDINAL and CARDINAL of ORG ... as being arbitrary and disproportionate . ”

In NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] CARDINAL AC CARDINAL , ORG and PERSON [ DATE ] CARDINAL AC CARDINAL , ORG , ORG found that , under the tariff system then in operation , there was “ no reason , in principle , why a crime or crimes , if sufficiently heinous should not be regarded as deserving lifelong incarceration for purposes of pure punishment ” ( per Lord PERSON at pp . PERSON ) . Lord PERSON also observed : “ there is nothing logically inconsistent with the concept of a tariff by saying that there are cases were the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence ” ( p. CARDINAL ) .

Under the present statutory framework in GPE and GPE , LAW of LAW DATE , a trial judge can impose a whole life term or order on a defendant convicted of murder . Such a defendant is not eligible for parole and can only be released by the Secretary of ORG . In R v. PERSON [ DATE ] CARDINAL WLR CARDINAL ORG considered that such whole life terms were compatible with LAW .

It found that a whole life order did not contravene LAW possibility of compassionate release by the Secretary of ORG . It also found that the imposition of an irreducible life sentence would not itself constitute a violation of LAW but rather that a potential violation would only occur once the offender had been detained beyond the period that could be justified on the ground of punishment and deterrence . The court stated :

“ CARDINAL . While under LANGUAGE law the offence of murder attracts a mandatory life sentence , this is not normally an irreducible sentence . The judge specifies the minimum term to be served by way of punishment and deterrence before the offender ’s release on licence can be considered . Where a whole life term is specified this is because the judge considers that the offence is so serious that , for purposes of punishment and deterrence , the offender must remain in prison for the rest of DATE . For the reasons that we have given , we do not consider that the GPE court has ruled that an irreducible life sentence , deliberately imposed by a judge in such circumstances , will result in detention that violates article CARDINAL . Nor do we consider that it will do so .

It may be that the approach of the GPE court will change . There seems to be a tide in LOC that is setting against the imposition of very lengthy terms of imprisonment that are irreducible . Thus it may become necessary to consider whether whole life terms imposed in this jurisdiction are , in fact irreducible .

Under the regime that predated LAW it was the practice of the Secretary of ORG to review the position of prisoners serving a whole life tariff after they had served DATE with a view to reducing the tariff in exceptional circumstances , such as where the prisoner had made exceptional progress whilst in custody . No suggestion was then made that the imposition of a whole life tariff infringed article CARDINAL .

Under the current regime the Secretary of ORG has a limited power to release a life prisoner under LAW DATE .

At present it is the practice of the Secretary of ORG to use this power sparingly , in circumstances where , for instance , a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated . If , however , the position is reached where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment , we can see no reason why , having particular regard to the requirement to comply with the LAW , the Secretary of ORG should not use his statutory power to release the prisoner .

For these reasons , applying the approach of the GPE court in GPE v GPE DATE , we do not consider that a whole life term should be considered as a sentence that is irreducible . Any article QUANTITY challenge where a whole life term has been imposed should therefore be made , not at the time of the imposition of the sentence , but at the stage when the prisoner contends that , having regard to all the material circumstances , including the time that he has served and the progress made in prison , any further detention will constitute degrading or inhuman treatment . ”

Article CARDINAL of LAW provides that human dignity shall be inviolable . Article CARDINAL ) provides :

“ Every person shall have the right to life and physical integrity . Freedom of the person shall be inviolable . These rights may be interfered with only pursuant to a law . ”

The compatibility of a mandatory sentence of life imprisonment for murder with these provisions was considered by ORG in the Life Imprisonment case of DATE , CARDINAL BVerfGE CARDINAL ( an NORP translation of extracts of the judgment , with commentary , can be found in PERSON , LAW ( CARDINALnd ed . ) , ORG , GPE and GPE , DATE at pp . CARDINAL - CARDINAL ) .

The court found that the ORG could not turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth . Respect for human dignity and the rule of law meant the humane enforcement of life imprisonment was possible only when the prisoner was given “ a concrete and realistically attainable chance ” to regain his freedom at some later point in time .

The court underlined that prisons also had a duty to strive towards the re - socialisation of prisoners , to preserve their ability to cope with life and to counteract the negative effects of incarceration and the destructive changes in personality that accompanied imprisonment . It recognised , however , that , for a criminal who remained a threat to society , the goal of rehabilitation might never be fulfilled ; in that case , it was the particular personal circumstances of the criminal which might rule out successful rehabilitation rather than the sentence of life imprisonment itself . The court also found that , subject to these conclusions , life imprisonment for murder was not a senseless or disproportionate punishment .

In the later War Criminal case CARDINAL BVerfGE CARDINAL ( DATE ) , where the petitioner was DATE of age and had served DATE of a life sentence imposed for sending CARDINAL people to the gas chambers , the court considered that the gravity of a person ’s crime could weigh upon whether he or she could be required to serve his or her life sentence . However , a judicial balancing of these factors should not place too heavy an emphasis on the gravity of the crime as opposed to the personality , state of mind , and age of the person . In that case , any subsequent review of the petitioner ’s request for release would be required to weigh more heavily than before the petitioner ’s personality , age and prison record .

NORP In its decision of DATE , BVerfG , DATE , ORG considered an extradition case where the offender faced “ aggravated life imprisonment until death ” ( erschwerte lebenslängliche GPE bis zum PERSON ) in GPE . The NORP government had sought assurances that he would be considered for release and had received the reply that the President of GPE had the power to remit sentences on grounds of chronic illness , disability , or old age . The court refused to allow extradition , finding that this power of release offered only a vague hope of release and was thus insufficient . Notwithstanding the need to respect foreign legal orders , if someone had no practical prospect of release such a sentence would be cruel and degrading ( grausam und erniedrigend ) and would infringe the requirements of human dignity provided for in LAW .

ORG has found that a grossly disproportionate sentence will amount to cruel and unusual treatment or punishment ( see , inter alia , R v. PERSON ( PERSON ) [ DATE ] CARDINAL SCR CARDINAL ) . In R v. PERSON [ DATE ] CARDINAL S.C.R. CARDINAL , the court considered that , for first degree murder , a mandatory minimum sentence of life imprisonment without eligibility for parole for DATE was not grossly disproportionate . Similarly , in R v. PERSON DATE CARDINAL SCR CARDINAL , for second degree murder , a mandatory minimum sentence of life imprisonment without eligibility for parole for DATE was not grossly disproportionate . The court observed that gross disproportionality would only be found on “ rare and unique occasions ” and that the test for determining this issue was “ very properly stringent and demanding ” .

NORP In Dodo v. the ORG ( CCT CARDINAL/CARDINAL ) [ DATE ] ZACC CARDINAL , ORG considered whether a statutory provision which required a life sentence for certain offences including murder , was compatible with the constitutional principle of the separation of powers , the accused ’s constitutional right to a public trial and the constitutional prohibition on cruel , inhuman or degrading treatment or punishment . The court found none of these constitutionals provisions was infringed , since the statute allowed a court to pass a lesser sentence if there were substantial and compelling circumstances . The court did , however , observe that the concept of proportionality went to the heart of the inquiry as to whether punishment was cruel , inhuman or degrading .

In PERSON v. The ORG ( ORG CARDINAL/CARDINAL ) [ DATE ] ZACC CARDINAL , the court found an indeterminate sentence imposed pursuant to a declaration that the defendant was a “ habitual criminal ” to be grossly disproportionate because it could amount to life imprisonment for a non - violent offender . The court “ read in ” a maximum sentence of DATE to the relevant statute .

In PERSON v. the Queen [ DATE ] ORG CARDINAL ORG of ORG considered that a mandatory death penalty for murder by shooting was incompatible with section CARDINAL of LAW , which prohibits torture and ill - treatment in identical terms to LAW . Lord PERSON observed that to deny the offender the opportunity , before sentence is passed , to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate was to treat him as no human being should be treated . The relevant law was not saved by the powers of pardon and commutation vested by the LAW in FAC , assisted by ORG ; in Lord PERSON ’s words “ a non - judicial body can not not decide what is the appropriate measure of punishment to be visited on a defendant for the crime he has committed ” .

In PERSON v. the State of GPE [ DATE ] UKPC CARDINAL the appellant had been sentenced to death . With the abolition of the death penalty in GPE , his sentence was commuted to a mandatory life sentence . ORG considered the ORG ’s judgment in GPE , cited above , and found that the safeguards available in GPE to prevent PERSON from being without hope of release were not available in GPE . ORG had interpreted such a sentence as condemning PERSON to penal servitude for the rest of his life and the provisions of the relevant legislation on parole and remission did not apply . This meant the sentence was manifestly disproportionate and arbitrary and so contrary to section CARDINAL of LAW ( provisions to secure protection of law , including the right to a fair trial ) . It had also been argued by the appellant that the mandatory nature of the sentence violated section QUANTITY ( the prohibition of torture , inhuman or degrading punishment or other such treatment ) . In light of its conclusion on section CARDINAL , the ORG considered it unnecessary to decide that question or to consider the relevance of the possibility of release under section CARDINAL ( the presidential prerogative of mercy ) . It did , however , find that the safeguards available in GPE ( in the form of the Attorney - General ’s powers to recommend release and the President ’s powers to commute sentences or decree release ) were not available in GPE . It also acknowledged the appellant ’s argument that , as with the mandatory sentence of death it had considered in PERSON , a mandatory sentence of life imprisonment did not allow for consideration of the facts of the case . ORG also considered any differences between mandatory sentences of death and life imprisonment could be exaggerated and , to this end , quoted with approval the dicta of Lord Justice Laws in GPE and Lord PERSON in PERSON ( at DATE and CARDINAL above ) .

NORP In State v. PERSON [ DATE ] ORG CARDINAL , ORG held that a mandatory sentence of CARDINAL years’ imprisonment for murder amounted to inhuman or degrading treatment in violation of section CARDINAL on the grounds that it was disproportionate .

NORP In GPE v. Tcoeib [ DATE ] CARDINAL LRC CARDINAL ORG considered the imposition of a discretionary life sentence to be compatible with section CARDINAL of the country ’s constitution ( subsection ( c ) of which is identical to LAW ) . Chief Justice PERSON , for the unanimous court , found the relevant statutory release scheme to be sufficient but observed that if release depended on the “ capricious exercise ” of the discretion of the prison or executive authorities , the hope of release would be “ too faint and much too unpredictable ” for the prisoner to retain the dignity required by section CARDINAL . It was also observed that life imprisonment could amount to cruel , inhuman or degrading treatment if it was grossly disproportionate to the severity of the offence . ORG of GPE found mandatory minimum sentences for robbery and possession of firearms to be grossly disproportionate in ORG v. PERSON CARDINAL LRC CARDINAL and ORG v Likuwa [ DATE ] CARDINAL LRC CARDINAL .

In PERSON and Another v. PERSON [ DATE ] CARDINAL HKCFAR CARDINAL , [ DATE ] CARDINAL HKLRD CARDINAL , ORG rejected a challenge to the mandatory life sentence for murder . It found that the possibility of regular review of the sentence by an independent board meant it was neither arbitrary nor grossly disproportionate and thus it did not amount to cruel , inhuman or degrading punishment .

Section CARDINAL of the New Zealand LAW DATE also protects against disproportionately severe treatment or punishment .