ECHR Article 3
Degrading treatment
Inhuman treatment
Continued enforcement in United Kingdom pursuant to prisoner transfer agreement of lengthy sentence imposed by Thai courts: inadmissible
Article 5
Article 5-1
Deprivation of liberty
Article 5-1-a
After conviction
Continued enforcement in United Kingdom pursuant to prisoner transfer agreement of lengthy sentence imposed by Thai courts: inadmissible
Facts – Both applicants were detained in prisons in the United Kingdom serving sentences which had been imposed by courts in Thailand for possession of drugs, after pleading guilty to the charges. They had been transferred to the United Kingdom to serve the remainder of their sentences pursuant to a prisoner transfer agreement which operated between the United Kingdom and Thailand. They had been informed that upon transfer they would not be able to challenge the duration of their sentences.
In their applications to the European Court, the applicants contended that their sentences were grossly disproportionate, being four to five times longer than the sentences they would have been likely to receive had they been convicted of the same offences in the United Kingdom and that their continued enforcement violated their rights under Article 3 of the Convention. They further complained under Article 5 that their continued detention was arbitrary as, owing to the way the prisoner transfer agreement worked, had they in fact pleaded not guilty, they would have ended up serving less time in prison. The first applicant also argued that an ‘irrebuttable presumption’ had been applied in his case which had rendered his trial flagrantly unfair, such that his continued detention in the United Kingdom was arbitrary.
Law – Article 3: While in principle matters of appropriate sentencing largely fell outside the scope of the Convention, the Court accepted that a grossly disproportionate sentence could amount to ill-treatment contrary to Article 3 at the moment of its imposition. However, gross disproportionality was a strict test and would only be met in very exceptional circumstances. Further, due regard must be had for the fact that sentencing practices vary greatly between States owing to different domestic conditions and approaches. When considering the degree of humiliation or suffering inherent in the impugned acts, it was necessary to have regard to the degree of humiliation or suffering inherent in the alternative option.
In the present case the sentences had been imposed and, had they not been transferred, the applicants’ conditions of continued detention in Thailand may well have been harsh and degrading. It would in the Court’s view be paradoxical if the protection afforded by Article 3 operated to prevent prisoners being transferred to serve their sentences in more humane conditions. Therefore the question to be asked was whether any suffering and humiliation involved in the continued enforcement of a sentence would go beyond that connected with the enforcement of the sentence imposed by the foreign court. In assessing that level of suffering, the fact the transfer had occurred within a framework of international cooperation in the administration of justice which was in principle in the interests of the persons concerned, was be taken into account. Prisoner transfer agreements were generally intended to serve the aims of eliminating the adverse effects of serving a sentence in an environment which was socially, culturally or linguistically unfamiliar and facilitating future reintegration into society.
There was no suggestion in the instant case that the sentences imposed on the applicants were outside the range of sentences generally imposed on others convicted in Thailand of similar offences. They also fell within the permitted maximum applicable to equivalent convictions in England. It was also relevant that Thailand faced a serious drugs problem, and for this reason punished drugs offences severely. Likewise, the impugned sentences were being enforced by the United Kingdom pursuant to requests from the applicants for their transfer, in circumstances where both applicants had been advised of the length of the sentences they would have to serve and their inability to challenge the convictions or sentences imposed. Lastly, had the transfer requests been refused, both applicants would have been eligible for early release only at the two-thirds point of their sentences, instead of at the halfway point applicable to them under English law.
Conclusion: inadmissible (manifestly ill-founded).
Article 5 ss 1
(a) Effect of the guilty pleas – The applicants argued that their guilty pleas ought to have resulted in a significant reduction of sentence. However, although in Thailand their sentences had been reduced from life imprisonment to determinate sentences, the impact of this reduction had effectively been inversed by their transfer to the United Kingdom. This was because if they had pleaded not guilty and been sentenced in Thailand to life imprisonment, it would have fallen to the English High Court to determine an appropriate minimum term for them to serve before they were considered for release on licence. In carrying out this exercise, the High Court would have had regard to local sentencing guidelines and the tariffs imposed in each of their cases would have been dramatically lower than the determinate sentences imposed by the Thai courts. As such, had they not pleaded guilty, they would now have the prospect of immediate release.
However, the Court observed that in the case of the first applicant, life imprisonment was not the only sentence available to the Thai court had it convicted him after a plea of not guilty. He could have been sentenced to death. In so far as his guilty plea had reduced a death sentence to a determinate sentence of imprisonment, he had reaped a significant benefit from it. Further, royal amnesties were common in Thailand and could operate to reduce a sentence of life imprisonment to a determinate sentence. Both applicants had already benefited from a reduction in sentence as a result of a royal amnesty. It had therefore not been established that had the applicants pleaded not guilty, they would have still been subject to life sentences of imprisonment at their point of transfer, such that the fixing of a minimum term by the High Court would be required. Additionally, in the case of the first applicant, had he been sentenced to life imprisonment he would have been required to serve a minimum term of eight years in Thailand before being eligible for transfer, rather than the four he had actually served. Although no such information had been provided in respect of the second applicant, it was likely that similar limitations would have applied. Moreover, it was not accurate to compare the tariff period under a life sentence with the term of a determinate sentence. In particular, a life sentence entailed obligations and restrictions which extended beyond the mere period spent in detention, both in the form of parole conditions and the risk of being returned to custody in the case of a breach of those conditions. These restrictions made a life sentence a more stringent sentence in principle. Finally, any differences in outcome which had arisen were not due to the arbitrary application of different rules to different prisoners. Clear rules were applied in prisoner transfer cases, and had been applied in the applicants’ cases. That different outcomes had occurred was the result of the interaction between the law of the transferring State on sentencing and the practice of the receiving State on transfer.
In these circumstances, the continued detention of the applicants by the United Kingdom could not be said to have been arbitrary within the meaning of Article 5 ss 1 (a) as a result of the effect of their guilty pleas.
(b) The ‘irrebuttable presumption’ – The first applicant complained that owing to the irrebuttable presumption in Thai law that drugs beyond a certain quantity were for distribution, he had not been able to argue that they were in fact for his personal use. In his submission, therefore, his trial had been flagrantly unfair and his subsequent detention arbitrary.
The Court observed that the test whether there had been a ‘flagrant denial of justice’ was a stringent standard and went beyond mere irregularities to require a destruction of the very essence of the right to a fair trial.
Presumptions of fact or of law operated in every legal system. Such presumptions had to be confined within reasonable limits which took into account the importance of what was at stake and maintained the rights of the defence, so it could not be excluded that there might be circumstances in which a provision of the nature in question in the first applicant’s case would give rise to a violation. However the purpose of that provision had been to increase the penalty that could be imposed on those in possession of more than a certain quantity of narcotics, in order to act as a deterrent. The offence had arisen essentially from the possession of the narcotics, and this still had to be proved by the prosecution. The first applicant had had the benefit of a number of procedural guarantees in the Thai proceedings. He had been tried in public before two independent judges; he had been present throughout the proceedings and was legally represented; he had been acquitted of some of the charges in accordance with the presumption of innocence and, despite the fact that possession of heroin and ecstasy was not contested, evidence was led to demonstrate that the drugs were in his possession; and he had been sentenced in accordance with the applicable law and given a significant reduction for his guilty plea. In any event, it was a material factor when assessing the impact of the irrebuttable presumption on the overall fairness of the trial that the first applicant had not alerted the British authorities, either during his trial or when making his request for a transfer, to the alleged flagrant denial of justice in his case.
Conclusion: inadmissible (manifestly ill-founded).
43759/10 43771/12 – Legal Summary, [2013] ECHR 292
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – Shahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Criminal Sentencing
Updated: 09 November 2021; Ref: scu.472447