Despite what some critics seem to think, Strasbourg judges do live in the real world
It's easy to be wise after the event, but I was not at all surprised when the European Court of Human Rights (ECtHR) dismissed extradition challenges by Abu Hamza and four other alleged terrorists this morning. I had said as much in an interview for BBC Radio Scotland, just before the decision was released.
That was because I had a look last night at the court's previous ruling on this case. Nearly two years ago, the ECtHR dismissed most of the arguments put by most of these applicants as "manifestly ill-founded". In 2010, the court found no reason to disbelieve US diplomatic assurances that the applicants would not be treated as "enemy combatants", subjected to extraordinary rendition or face the death penalty. They could expect fair trials and proper treatment on remand.
Only two questions remained. Would their detention in a "supermax" high-security prison breach article 3 of the human rights convention, which prohibits torture and inhuman or degrading treatment or punishment? And would there be a breach of article 3 if they were sentenced to life imprisonment?
In Abu Hamza's case, only the second question arose. His physical condition meant that he could not be detained in a supermax prison for any length of time. An attempt to reinstate the "treatment" complaint on his behalf was firmly rejected by the ECtHR today.
At the court's request, it had been provided with information from the US authorities about conditions in a so-called ADX prison. It turned out, as the Strasbourg judges wryly observed, that "the range of activities and services provided goes beyond what is provided in many prisons in Europe". Although inmates cannot have a newspaper of their choice they receive a free, daily copy of USA Today. They have access to 50 television channels and seven radio channels.
For security reasons, there are restrictions on group prayer. But inmates can talk to each other in the recreation yard. Rather quaintly, prisoners in adjacent cells are permitted to have conversations through the ventilation grilles.
True, there are limits to the number of times an inmate can leave his cell, phone his family and visit the prison shop. But inmates' privileges are progressively increased for good behaviour.
All in all, the ECtHR concluded, the isolation experienced by prisoners in an ADX prison is "partial and relative". It did not amount to a breach of article 3.
What about possible life sentences? Abdul Bary, for example, is facing 269 life sentences for murder without the possibility of parole. The applicants argued that what we would call a "whole-life" sentence would violate article 3 if it did not allow for the possibility of release at some future point. They claimed a sentence would also breach article 3 if it was "grossly disproportionate" to the crime.
Given that all the applicants are accused of support for, or involvement in, terrorism, the court concluded that life sentences in their cases would not be disproportionate. And the judges said the time to consider whether a prisoner's life sentence breached article 3 (because his "continued incarceration no longer serves any legitimate penological purpose") was the time at which he was seeking to be released.
That moment, as the court accepted, might never arise. If it did, though, the ECtHR was not persuaded that the US authorities would refuse to use existing procedures under which these applicants might be freed.
And that was good enough. The court found that the five had not shown a real risk of treatment reaching the threshold of article 3 if they were extradited, convicted and sentenced.
The court adjourned for further submissions the claim brought on behalf of one further applicant, Haroon Rashid Aswat, who is suffering from schizophrenia. Aswat, currently detained at Broadmoor hospital, is accused of conspiracy to establish a jihadi training camp in the state of Oregon between June 2000 and December 2001.
The judges reached their unanimous conclusions without the need for an oral hearing. This suggests it is very unlikely that the court's grand chamber will accept any request the applicants may make for their case to be reheard. Still less is it likely that an appeal will be successful. Even so, the court asked the British government not to extradite the five men to the US until there was no further possibility that today's judgment might be overturned. That will take some months and meanwhile the men will remain in detention.
Why, then, am I not surprised by the ruling? It's because, despite what some critics seem to think, the Strasbourg judges do live in the real world. Quite rightly, they will not countenance the death penalty. Equally pragmatically, they realise that extinguishing all possibility of future release is no way to run a penal system. Nor will they permit torture or solitary confinement.
But they hold no brief for terrorism. Provided those accused of terrorist crimes are properly tried in ordinary courts, properly convicted and then properly incarcerated in what any country would acknowledge to be decent conditions, the European judges are hardly going to object.
No doubt the picture painted by the US authorities of their high-security prison is not quite as rosy as it might appear. Perhaps USA Today is delivered late. Maybe some of the television channels may be blocked. Having to eat in your cell may be less than ideal. The court was right to seek details of prison conditions, if only to show how much better they were than in many European countries. And it's true, as critics have pointed out today, that if these applicants were detained until the point when the ECtHR might have supported their release, there will be nothing that the Strasbourg judges can do about it.
But no human rights court would last very long if it took the view that mass murderers and other convicted terrorists should not be locked up for a very long time indeed. And if that's a "political" judgment, then it's a judgment I share.