The European Court has decided, in large part on the basis of disputed statistics provided by the UK Government to which the Applicants were not permitted to respond, that isolation in a US Supermax prison is “relative” and will become a violation of Article 3 ECHR which prohibits torture, only if it extends indefinitely.
It will come as a considerable surprise to the inmates of ADX Florence, the prison in question, and their lawyers who struggle fruitlessly to challenge in the US courts their continuing solitary confinement for 8, 10, or 16 years, that the prisoners’ grim isolation could be considered only “relative” and its continuance as justiciable. It will be equally surprising to international lawyers, who may include the UN Special Rapporteur on Torture and the European Committee for the Prevention of Torture, that the view of the European Court as to what constitutes isolation is apparently in conflict with their own.
The Court’s judgment however does not address at all the burning issue in these cases, and one that has been the focus of intense debate in the UK for the past 6 years, namely why in all logic, fairness, and practical common sense are not British citizens (whose UK actions are forming the basis of prosecution in the US, and where all of the evidence on which they are being tried was accumulated in its entirety in the UK by UK police and shipped lock stock and barrel to US prosecutors), being tried in their own country?
Every aspect of the 4 years of proceedings in the European Court would have been avoided had straightforward early steps been initiated to prosecute in the UK. The notion of the appropriate forum for trial and punishment being the accused person’s own country is the subject matter of automatic guarantees in many countries which refuse to extradite their own nationals but instead, guarantee that if extradition is sought by a foreign requesting state, that it will prosecute its own national instead. Or – the case in Holland and Israel – they will extradite their own nationals but only if there is an unshakeable guarantee by the requesting state that they would be returned if they are convicted, to serve their sentences in their country of origin.
That extradition, an important measure practised between states, must be respected, is a phrase frequently applied in the courts. What is important to point out is that the respect due to extradition stems not so much from respect for diplomatic relationships between states, but so that perpetrators of crime will not go unpunished. In each of the cases decided by the European Court today what has been emphasised by the Appellants throughout is not that any accused should “avoid justice”, but that they should be tried and if appropriate convicted in the country in which the claimed evidence was found, in which the relevant witnesses are present (both for the prosecution and the defence) and in which none of the serious issues raised in the European Court’s extended proceedings would have arisen.