Extraditions from Europe to the United States

In principle, extraditions are based on national law, depending on the country concerned on EU law, but above all, on bilateral and multilateral treaties between countries. This is also the case within Europe. However, in connection with extradition requests, it should be noted that most cases are directly related to the human rights of the person concerned. As a result of the approval of the European Convention on Human Rights (ECHR) and the submission of many European states to the jurisdiction of the European Court of Human Rights (ECHR), in many cases, there is, therefore a further legal protection option for the persons concerned after all domestic legal remedies have been exhausted: resort to the ECHR. Any person who claims to have been the victim of a violation of the Convention can lodge a complaint with the Court in Strasbourg. The complaint can be directed against one or more states that have ratified the ECHR.

Therefore, if the USA makes an extradition request to a European state, the person concerned can lodge an appeal against the decision of the European state to agree to the extradition. The opposing party would, therefore, be the respective European state but not the USA itself.

Legal regulations of various kinds play a role in extradition proceedings from Europe to the USA. If a person brings an action before the European Court of Human Rights, all decisions must be made in the light of the European Convention on Human Rights. However, the relevant national law is also important. Only by considering the national provisions and the bilateral treaties between the European state requesting extradition and the USA is it possible to thoroughly analyse the individual case. Both federal law, i.e. the national law of the USA, and the law of the state concerned within the USA, may be relevant. The regulations made there determine, for example, the available legal remedies or the options to which a prisoner is entitled, based on which their sentence could be reduced during imprisonment. What is applicable in a specific case depends on the circumstances of the individual case.

Considering the different legal systems in relation to the case law of the European Court of Human Rights, case law, i.e. previous judgements in similar cases, is always of particular value. Previous judgements indicate how a case could be decided in the future and whether it is worth filing an appeal. However, even if a case appears to be hopeless according to previous case law, even fundamental judgements are always overturned by more recent case law and decided differently in the future based on the new decision.

Regarding extradition to the USA, violations of Art. 3 ECHR, the prohibition of torture, are usually feared in proceedings before the ECHR:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Key issues here are, on the one hand, long prison sentences that are longer than average, the death penalty that still exists in many federal states and inhumane prison conditions in some cases. In Europe, life sentences without at least the prospect of release during one’s lifetime are considered a violation of the prohibition of torture under Art. 3 ECHR. If a person is threatened with such a sentence in the requesting state, this can be an obstacle to extradition to the country in question.

In the case of extraditions to the USA, in particular, it is repeatedly argued that prison sentences of over 100 years are incompatible with the prohibition of torture. However, it is not sufficient in this context that such a sentence is generally possible. Instead, the circumstances of the individual case must be analysed to determine whether it is likely that such a high sentence will be imposed and whether the person concerned has the means to reduce the sentence at a later date.

The same applies to the death penalty. To this day, the death penalty is still sometimes imposed and carried out in many US states. In most cases, however, it is already stipulated in the relevant national law or, at the latest, in the extradition treaty that extradition will not take place if the imposition or exercise of the death penalty is imminent. However, assurances on the part of the USA that a person concerned does not have to fear the death penalty in the event of extradition are generally regarded as reliable and, therefore, sufficient to agree to extradition.

The conditions of detention in US prisons are also repeatedly criticised. Inhumane accommodation of prisoners, including in private prisons, as well as deaths and violence in prisons and police custody, are well-known problems. Consideration of the individual case, i.e., the detention conditions to be expected by the person concerned, is also crucial in this context. If there are fears that the detention conditions in a requesting state do not meet European standards and could violate Art. 3 ECHR, the state in question must state exactly what accommodation the person concerned can expect in which detention centre.

An example of this can be found in the landmark judgement Soering v. the United Kingdom (7 July 1989). Here, the court went into detail about the conditions of detention to be expected, such as the size of the cells, communal areas and employment opportunities, and the time in the fresh air to which the prisoners were entitled (Soering, §§ 63 ff.). Corresponding information and assurances that the conditions of detention fulfil the requirements of the ECHR must be provided by the requesting state itself if there are any indications to the contrary, often already during the national proceedings, to dispel any doubts the court may have.

Numerous judgements of the European Court of Human Rights (ECHR) deal with the extradition of persons from Europe to the USA. For example, the ruling in Sanchez-Sanchez v. the United Kingdom (no. 22854/20, 3 November 2022) is of fundamental importance. In its judgement, the ECHR developed specific requirements based on which the compatibility of extraditions with the ECHR must be examined. Accordingly, two steps must be taken: Firstly, the complainant must provide sufficient evidence that the sentence of life imprisonment with no prospect of release during their lifetime is sufficiently likely to occur in their specific case. In the second stage of the examination, it must be determined whether there is a possibility of shortening the term of imprisonment after the conviction due to good behaviour or other relevant personal circumstances.

Regarding the USA, previous judgements have already highlighted various options for those affected that can lead to the maximum sentence being avoided on the one hand and to a later reduction of the prison sentence imposed on the other. For example, López-Elorza v. Spain (no. 30614/15, 12 December 2017) refers to assurances given by the USA that a prison sentence imposed could always be reduced during the course of the sentence (see López, § 14). When imposing prison sentences in the USA, the broad discretionary powers of the judges also play an essential role, whereby guilty pleas by the accused, in particular, can lead to a significant reduction in the sentence. In addition, the USA often refers to the president's right to pardon, which is still regularly utilised (see López, §§ 93 ff.).

It is, therefore, possible for extraditions to the USA to be granted in various ways, even though the death penalty is still in force and life sentences with no prospect of early release are not compatible with human rights from a European perspective. The decisive factor for the outcome of the proceedings is ultimately the evidence presented by the respective sides – can the requesting state, the USA, provide sufficient assurances that the human rights of the person concerned will be respected, or is it possible for the defense to demonstrate an unacceptable risk of violation of their human rights.