The judgment of the European Court of Human Rights in upholding the extradition of terrorist suspects from the UK to the USA contains damaging implications for the idea of international standards in the use and practice of imprisonment. The Court’s finding that the likely detention conditions and length of sentences for the five alleged terrorists would not amount to ill-treatment gives a seal of approval to an approach to imprisonment fundamentally at odds with human rights and civilised values.
The carefully argued judgement has been widely welcomed on many sides, some expected, some less so. Human rights lawyer Lord Lester called it wise and sensible, hoping perhaps that it will go some way to meet growing criticism of the court as a criminals’ charter and demands that the UK withdraw from its jurisdiction. But by endorsing the use of mandatory life sentences without parole and highly repressive regimes in maximum security, the court has overridden two key principles that should govern the use and practice of prison.
First that in the words of the International Covenant on Civil and Political Rights “the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”. And second in the words of the Council of Europe’s Recommendation on Life and Long Term Prisoners “prison life should be arranged so as to approximate as closely as possible to the realities of life in the community”.
While the challenges of holding terrorist detainees and prisoners can require the application of specific measures and restrictions, these should self evidently not be such as to subvert the underlying approach to imprisonment.
On conditions of detention, the Court found little or no problem with the restrictions in place at the Colorado supermax prison, ADX Florence, likely to house the defendants. The court accepted that inmates are confined to their cells for the vast majority of the time, apart from ten hours a week in an individualised recreation area about 3.66 metres by 6 metres.
The restrictions are eased by “a great deal of in-cell stimulation through television and radio channels, frequent newspapers, books, hobby and craft items and educational programming.” In the court’s view “the range of activities and services provided goes beyond what is provided in many prisons in Europe”. The press release accompanying the judgement goes further claiming the services and activities on offer are beyond what is provided in most prisons in Europe.
The Court’s view let alone that of its press office is potentially highly misleading. There may be more in the way of TV channels and newspapers on offer in the ADX than is the norm in Europe. But far greater too is the level of restriction of liberty inherent in the regime. The Court accepted evidence about what happens in the facility from the Prison itself and from the Department of Justice. It rejected competing evidence from the Civil Rights Clinic at the University of Denver which painted an altogether bleaker picture, quoting a former warden’s assessment of the ADX as “a clean version of hell.”
In the absence of any independent monitoring, something to which the European Committee for the Prevention of Torture attaches particular importance, an objective assessment of the reality of life in ADX – surely essential to reaching a proper finding – is difficult to make.
The Court seems reassured that the services provided by ADX are supplemented by regular telephone calls (two a month in the basic regime ) and social visits (five a month) and by the ability of inmates, even those under special administrative measures, to correspond with their families.
The language is telling. These are supplementary privileges not rights and ones which in the case of these defendants may be of limited practical value. The CPT emphasises the need for flexibility as regards the application of rules on visits and telephone contacts for prisoners whose families live far away thereby rendering regular visits impracticable. Are ADX prisoners allowed to accumulate visiting time or offered improved possibilities for telephone contacts with their families? We do not know and the Court appears not to have asked.
It is not disputed the purpose of the regime at the ADX is to prevent all physical contact between an inmate and others, and to minimise social interaction between inmates and staff. Such a purpose seems in total contradiction to the norms set out in the Council of Europe’s recommendations on prison management. These say for example that the maintenance of control in prison should be based on the use of dynamic security – the development by staff of positive relationships with prisoners based on firmness and fairness, in combination with an understanding of their personal situation and any risk posed by individual prisoners.
They also say that regimes in maximum security units should aim to have a relaxed atmosphere, allow association between prisoners, freedom of movement within the unit and offer a range of activities. In a very strange finding, the Court takes the view that there are adequate opportunities for interaction between inmates at ADX . “While inmates are in their cells talking to other inmates is possible, admittedly only through the ventilation system.”
As the Council of Europe has agreed, the imperatives of the fight against terrorism may require that a person deprived of his liberty for terrorist activities be submitted to more severe restrictions than those applied to other prisoners. But overriding this is the requirement that a person deprived of his liberty for terrorist activities must in all circumstances be treated with due respect for human dignity.
It is not at all clear that the regime at ADX provides that due respect. It would be unfortunate to say the least if as a result if this judgement, the repressive regime in use there becomes a model for prison management elsewhere in the world.