(Suspected) terrorists
II. RELEVANT DOMESTIC LAW A. Belgian legislation on extradition 69. Under Belgian law, extradition proceedings are governed by the Extradition Act of 15 March 1874, the provisions of which, as far as they apply to the present case, may be summarised as follows. 70. Under section 1, extradition is only possible between Belgium and foreign States under a treaty concluded on a mutual basis. 71. The Belgian Act makes extradition subject to several conditions regarding the offence for which extradition is being requested: Section 2 “... where the crime or offence giving rise to the application for extradition has been committed outside the territory of the requesting party, the Government may only hand over the prosecuted or convicted foreigner, on a reciprocal basis, if Belgian legislation authorises the prosecution of the same offences committed outside the Belgian Kingdom.” Section 2bis “Extradition may not be granted if there are serious reasons to believe that the application was submitted for the purpose of persecuting or punishing a person on considerations of race, religion, nationality or political opinions, or if the situation of such person is liable to be worsened for any one of those reasons. Nor can extradition be granted if there are serious risks that if the person were extradited he would be subjected to a flagrant denial of justice, acts of torture or inhuman and/or degrading treatment in the requesting State. Where the offence for which extradition has been requested is punishable by the death penalty in the requesting State, the Government shall allow extradition only if the requesting State provides formal guarantees that the death penalty will not be enforced.” 72. In accordance with section 3(2), the application must be accompanied, in cases such as the present one, by an arrest warrant or any other equivalent document issued by the competent foreign authority, provided that these documents include a precise indication of the offence for which they have been issued and that they have been declared enforceable by the chambre du conseil of the regional court of the foreigner’s place of residence in Belgium or of the place where he is to be found. Investigatory proceedings before the chambre du conseil are not open to the public. 73. The decision is open to appeal before the Indictments Division of the Court of Appeal, where the investigatory proceedings are also not open to the public. Subsequently, an appeal on points of law lies against the judgment of the Indictments Division. 74. Pursuant to section 3(4), once the foreigner has been detained under the arrest warrant as declared enforceable, the Government take cognisance of the opinion of the Indictments Division of the competent court of appeal. The latter must verify that all the statutory and Treaty conditions for extradition are fulfilled. The hearing is, in principle, open to the public. The public prosecutor and the foreigner are heard, the latter having been duly summoned to appear and provided with the case file ten days before the hearing. The opinion of the Indictments Division is not made public, and at this stage neither the foreigner nor his lawyer has access to it. 75. The opinion is then transmitted to the Minister for Justice. Since the opinion is not a judgment it is not open to an appeal on points of law before the Court of Cassation. Nor is it liable to an application for judicial review before the Conseil d’Etat. 76. The Minister for Justice decides whether or not to hand over the foreigner to the requesting State. A non-suspensive application for judicial review of the ministerial decision lies to the Conseil d’Etat. B. The extradition agreement between Belgium and the United States 77. A treaty on extradition between Belgium and the United States was signed in Brussels on 27 April 1987. This bilateral agreement was amended and updated, pursuant to the 25 June 2003 agreement between the European Union and the United States of America on extradition, under a bilateral “instrument” of 16 December 2004. 78. The relevant provisions of the 27 April 1987 agreement as amended are as follows: Article 2 - Extraditable Offenses “1. An offense shall be an extraditable offense if it is punishable under the laws in both Contracting States by deprivation of liberty for a maximum period of more than one year or by a more severe penalty. 2. If extradition is requested for the execution of a sentence, the sentence originally imposed must have been deprivation of liberty for a period of at least one year or a more severe penalty. 3. The following shall also be an extraditable offense: (a) an attempt to commit one of the offenses described in paragraph 1 or the participation as co-author or accomplice of a person who commits or attempts to commit such an offense; or (b) an association formed to commit any of the offenses described in paragraph 1 under the laws of Belgium, or a conspiracy to commit any such offenses as provided by the laws in the United States. 4. In determining whether an offense is an extraditable offense, the Contracting States: (a) shall consider only the essential elements of the offense punishable under the laws of both states; and (b) shall not consider as an essential element of an offense punishable in the United States an element such as interstate transportation or use of the mails or of other facilities affecting interstate or foreign commerce, since such an element is for the purpose of establishing jurisdiction in a United States federal court; (c) shall disregard that the respective laws do not place the offense within the same category of offenses or describe the offense by the same terminology. 5. If extradition has been granted for an extraditable offense or for the execution of a sentence, it shall also be granted for: (a) any other offense specified in the request even if the latter offense is punishable by less than one year’s deprivation of liberty, and (b) the execution of any other penalty, including a fine, specified in the request for extradition even if the severity of the penalty does not fulfill the requirement of the minimum punishment imposed by paragraph 2, provided that all other requirements for extradition are met. 6. Extradition shall not be granted if prosecution of the offense or execution of the penalty has been barred by lapse of time under the laws of the Requested State. However, acts constituting an interruption or a suspension of the time-bar in the Requesting State shall be taken into consideration insofar as possible.” Article 5 – Prior Prosecution “1. Extradition shall not be granted when the person sought has been found guilty, convicted or acquitted in the Requested State for the offense for which extradition is requested. 2. Extradition shall not be precluded by the fact that the authorities in the Requested State have decided not to prosecute the person sought for the acts for which extradition is requested, or to discontinue any criminal proceedings which have been instituted against the person sought for those acts.” Article 6 – Humanitarian Considerations “1. If an offense for which extradition is requested is punishable by death in the Requesting State, and if in respect of such offense the death penalty is not provided for by the Requested State or is not normally carried out by it, extradition may be refused, unless the Requesting State gives such assurances as the Requested State considers sufficient that the death penalty will not be carried out. 2. Notwithstanding the provisions of the present Treaty, the executive authority of the Requested State may refuse extradition for humanitarian reasons pursuant to its domestic law.” C. Possibilities of reducing life sentences under US law 79. The possibilities of sentence reduction mentioned in the diplomatic note sent by the US authorities to their Belgian counterparts on 10 August 2010 (see paragraph 27 above) are set out in the following provisions: Federal Rules of Criminal Procedure Rule 35. Correcting or Reducing a Sentence “... (b) Reducing a Sentence for Substantial Assistance. (1) In General. Upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person. (2) Later Motion. Upon the government’s motion made more than one year after sentencing, the court may reduce a sentence if the defendant’s substantial assistance involved: (A) information not known to the defendant until one year or more after sentencing; (B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or (C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant. (3) Evaluating Substantial Assistance. In evaluating whether the defendant has provided substantial assistance, the court may consider the defendant’s pre-sentence assistance. (4) Below Statutory Minimum. When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute. (c) ‘Sentencing’ Defined. As used in this rule, “sentencing” means the oral announcement of the sentence.” United States Code, Title 18 - Crimes and Criminal Procedure § 3582. Imposition of a sentence of imprisonment “... (c) MODIFICATION OF AN IMPOSED TERM OF IMPRISONMENT The court may not modify a term of imprisonment once it has been imposed except that (1) in any case (A) the court, upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that (i) extraordinary and compelling reasons warrant such a reduction; or (ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g); and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and (B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure; ...” 80. The aforementioned Article 3582 (c)(1)(A) is relied upon by the Federal Bureau of Prisons in cases of particularly exceptional or pressing circumstances which could not reasonably have been foreseen by the court at the time of determination of sentence. It is primarily a case of sentence reduction on humanitarian grounds. 81. Furthermore, Article 2 (II) of the US Constitution empowers the President to commute or reduce a sentence or grant a pardon in cases of conviction for a Federal offence. 82. The Constitution does not restrict the President’s power to grant or refuse executive clemency, but the Pardon Attorney operating with the Department of Justice prepares a recommendation to the President for every application for a pardon, and is required to consider the applications in accordance with the guidelines set out in Title 28 of the Code of Federal Regulations. This Code states that persons requesting a pardon or sentence commutation must wait five years after their conviction to be eligible for a pardon. They must fill out and sign an application form, which must be addressed to the President and submitted to the Pardon Attorney. Applicants must state their reasons for requesting a pardon and provide detailed information, and also references. On receipt of the application the Pardon Attorney must carry out an investigation and decide whether the application for a pardon should be accepted by the President. 83. The President’s decision is final and not open to appeal. The prisoner must wait a minimum of two years from the date of the refusal before submitting a fresh application. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RELATION TO THE APPLICANT’S EXTRADITION 844. According to the applicant, the Belgian authorities’ decision to hand him over to the United States was in breach of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 85. In their additional observations on Article 34 of the Convention as submitted to the Court on 8 November 2013, the Government raised an objection as to inadmissibility based on non-exhaustion of domestic remedies. They contended that the application had been manifestly premature because it had been lodged on 23 December 2009, before completion of the administrative phase of the response to the request for extradition. According to the Government, the applicant should have lodged his application on completion of this phase, that is to say after the dismissal of his application to the Conseil d’Etat for judicial review of the ministerial decree on his extradition. 86. The applicant submitted that the application had been lodged within six months of the 24 June 2009 judgment of the Court of Cassation, which had closed the judicial phase of enforcement of the US arrest warrant. At that stage in the extradition procedure the decision was a final one from which no appeal lay. The phase referred to by the Government was separate from the judicial enforcement proceedings, being an administrative phase which was open to appeal before the Conseil d’Etat and which, in the present case, ended with the Conseil d’Etat judgment of 23 September 2013. 87. The Court reiterates that it is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see Vučković and Others v. Serbia [GC], no. 17153/11, § 69, 25 March 2014). 88. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as regards complaints against a State are thus obliged to use first the remedies provided by the national legal system. It should be emphasised that the Court is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see Vučković and Others, cited above, § 70, and the references cited therein). 89. The Court also reiterates that the assessment of an applicant’s obligation to exhaust domestic remedies is normally carried out with reference to the date on which the application was lodged with it (see Baumann v. France, no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)). 90. In the instant case the Court notes that in his application bringing the case before the Court, the applicant complained of the judgment delivered on 24 June 2009 by the Court of Cassation dismissing his appeal against the judgment of the Court of Appeal allowing judicial enforcement of the arrest warrant issued against him by the US courts. This was a final decision in that it was not open to appeal. 91. The Court agrees that the situation is peculiar in that, during the judicial enforcement phase, the judicial courts do not decide on the extradition itself, which is a matter for the executive under the supervision of the Conseil d’Etat. This does not, however, mean that the decisions taken during the judicial enforcement phase cannot give rise to complaints under the Convention. Thus the applicant argued before the Court of Cassation that the enforcement of the arrest warrant which the USA had issued against him was problematical from the angle of Article 3 of the Convention (see paragraph 20 above). The applicant subsequently presented the same arguments to the Court. 92. The Court considers these factors sufficient to conclude that the application was not premature and that the objection as to non-exhaustion of the domestic remedies should be rejected. As a subsidiary consideration, it notes that in any case the final stages of the two phases of the extradition proceedings have meanwhile been completed before the Court decision on the admissibility of the application. 93. Moreover, the Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention and is not inadmissible on any other grounds. It should therefore be declared admissible. B. Merits 1. The parties’ submissions a) The applicant 94. The applicant complained that his extradition to the United States of America exposed him to treatment incompatible with Article 3 of the Convention. He contended that offences A and B, on the basis of which his extradition had been granted, carried a maximum life prison sentence which was irreducible de facto, and that if he were convicted he would have no prospect of ever being released. 95. The applicant deduced the de facto irreducibility of the life sentence from the factual data set out in the diplomatic notes of 11 November 2009 and 10 August 2010. He pointed out that the US authorities had referred to only one instance of sentence commutation in connection with serious offences relating to national security, and stated that they had no knowledge of any Presidential pardon or sentence commutation in cases of conviction for a terrorist offence such as those of which the applicant was accused. In this connection, the example of President Clinton’s executive clemency in 1999 was not relevant. This example should be seen in its context, which had nothing in common with the situation since the launch, after 11 September 2001, of a veritable war on so-called “Islam-inspired” terrorism; this was the context in which the applicant was being prosecuted. 96. The applicant also considered that the sources used by the Government to demonstrate the contrary should be treated with caution. The Government had failed to point out that at the time of publication of the studies cited, the Human Rights First NGO had been headed by an individual who had since taken up office in the US executive. The applicant also questioned the quality of the information supplied. He found it very strange that the problem of the conditions of detention of persons prosecuted for terrorism should be completely disregarded despite the fact that this issue had been central to the Court’s concerns in the aforementioned case of Babar Ahmad and Others. In fact, the CagePrisoners NGO, which supported Muslim prisoners held by the US on terrorism charges, had conducted an investigation which showed that such prisoners suffered very strict conditions of detention and a policy of discrimination in prison, were tortured in order to extract confessions, and were sentenced to disproportionate and unfair terms of imprisonment, and so on. 97. The applicant provided a different interpretation of the statistics cited by the Government. He pointed out that the average sentence length of 8.4 years excluded life sentences and took no account of the period of detention served by sentenced persons who were either released at the time of trial or placed on probation. Nor did these studies cover persons who had been arrested during the reference period but had not yet been tried. Furthermore, the US Department of Justice produced different figures: of the 403 persons already tried between 11 September 2001 and 18 March 2010, thirty-one had not yet been convicted, twelve had been given life sentences and five had been sentenced to sixty or more years’ imprisonment. The applicant cited the case of Richard Reid, whose name had been mentioned on several occasions in the criminal file which had led to the applicant’s conviction in Belgium, as well as during the extradition proceedings. Richard Reid had been sentenced in 2003 to life imprisonment on the same charge B as the applicant, for planning to destroy an aircraft during flight by means of explosives hidden in his shoes. 98. The applicant contended that his case was incomparable to that of the applicants in the aforementioned case of Babar Ahmad and Others because he had already been sentenced by the Belgian courts to the maximum penalty applicable in Belgium at the time of the facts charged and that he had not benefited from any mitigating circumstances. 99. Lastly the applicant argued that his only “hope of being released” lay in the prospects for the success, which were de facto non-existent “post-9/11”, of a request for a Presidential pardon or sentence commutation. This possibility, which lay in the hands of the executive without judicial supervision, not only bore no resemblance to a guarantee but was also totally non-juridical. It was subject to changing public opinion and was based on no predefined minimum criteria. It was therefore diametrically opposed to the requirements of coherency and foreseeability established in the aforementioned Vinter and Others judgment. b) The Government 100. As a preliminary point, the Government argued that in line with the Court’s approach in the aforementioned cases of Harkins and Edwards and Babar Ahmad and Others, the life-sentence issue had to be analysed against the background of an extradition, and it had to borne in mind that the applicant’s extradition had been requested solely for the purposes of prosecution before the US courts and that there was no certainty that the applicant would be found guilty of the charges against him. 101. Regard should also be had to the fact that even if the constituent elements of the offences set out in charges A and B (see paragraph 13 above), for which the applicant was liable to life imprisonment (see paragraph 15 above) were all present, the US authorities had provided assurances that such a sentence was discretionary and that the court dealing with the case was not obliged to impose the maximum penalty provided for by law. Furthermore, were a life sentence to be imposed, there were direct and indirect legal remedies against the conviction and the sentence, a possibility of requesting review of the conviction and means of reducing sentence. All this was in addition to the assurance provided by the US authorities that the applicant would be tried in the ordinary courts, that he would only be held in a civilian prison and that he was in no way exposed to the death penalty. 102. The Government submitted that there was no reason to doubt the assurances provided. Belgium had been bound by an extradition treaty with the United States since 1901 and had never experienced any cases of non-compliance by the United States with the obligations deriving from the diplomatic safeguards given. 103. At all events, according to the Government, any real risk of the applicant being subsequently sentenced to the maximum penalty laid down for the offences set out in charges A and B was limited, as attested by the data set out in the Human Rights First reports backed up by the statistics provided by the US Department of Justice on convictions for acts of terrorism (paragraph 29 above). Those publications showed clearly that all the cases of life sentences concerned much more serious offences than those with which the applicant had been charged. The example of Richard Reid cited by the applicant (see paragraph 97 above) fell into the same category because Reid had been arrested while he was engaged in carrying out his plan. In other cases individuals suspected of offences such as those set out in charges A and/or B applicable to the applicant had not been sentenced to the maximum penalty provided for by US law. 104. As to whether the life sentence to which the applicant was liable for the offences set out in charges A and B passed the “test” set by the Court in the aforementioned case of Kafkaris and was reducible de jure and de facto, the Government invited the Court to adopt the same reasoning as in the aforementioned cases of Babar Ahmad and Others and Harkins and Edwards. 105. Assuming that the question of proportionality was relevant in the present case despite the fact that the applicant’s extradition had only been requested for the purpose of his prosecution, it should first of all be pointed out that in view of the gravity of the charges against him the penalties which he risked incurring were not manifestly disproportionate. The only question arising was therefore whether, notwithstanding the fact that he was liable to a life sentence, he could be regarded as having any prospect of being released. 106. The first fact to be noted, one which had been acknowledged by the applicant before the Conseil d’Etat, was that in view of the legal possibilities of obtaining a commutation of sentence or a Presidential pardon in the United States as described in the diplomatic note of 10 August 2010, life sentences were reducible de jure. 107. Secondly, it was established that sentence reductions and Presidential pardons had indeed been granted on several occasions and that life sentences were also reducible de facto. The Government provided supporting statistics on the pardons and sentence reductions which had been granted since 1990, consultable on the US website of the Department of Justice. They submitted that all US Presidents had hitherto used their right to commute sentences and/or grant pardons. President George Bush had done so in 2008 in the case of a person who had been sentenced to life imprisonment without parole for drug trafficking. These measures had also been implemented for persons convicted of offences against national security, as in the case of the FALN members cited by the US authorities in their diplomatic note of 10 August 2010. 108. No other conclusion could be drawn from the fact that there had been no sentence reductions or Presidential pardons for individuals sentenced to life imprisonment for al-Qaeda-linked acts of terrorism. The same reasoning should be used as in Iorgov v. Bulgaria (no. 2) (no. 36295/02, 2 September 2010): since the sentences imposed by the US authorities for such acts had all been recent, the persons thus sentenced could not yet have requested a Presidential pardon. They were not eligible for such a measure until they had served part of their prison sentences. The lack of pardons for such offences could not therefore support the conclusion that the pardon system did not work. Supposing that he was convicted, when he had served part of his sentence the applicant could, at the appropriate time and in accordance with the provisions of US law, apply for a Presidential pardon or a sentence commutation. Several factors, or changes in the situation, might militate in favour of or against such a measure, and it was impossible at the current stage to speculate whether or when the applicant could be released. 109. The Government also contended that the US system met the requirements specified by the Court in its aforementioned Vinter and Others judgment, which, they stressed, had concerned mandatory life sentences, and not discretionary ones as in the present case. A Presidential pardon was a known measure which was therefore foreseeable under the legislation, and an appropriate measure which was broad enough to provide certain legal prospects of release to prisoners serving whole-life sentences. That having been said, it was also important to note that the US system was different from that of the United Kingdom. Unlike in the UK, a person convicted in the United States could apply for a pardon or a commutation of his sentence at any time. The duration or nature of the sentence was irrelevant. A convicted person could submit an unlimited number of applications. The procedure required prior assessment by the Pardon Attorney, who operated within the Department of Justice, and who provided a non-binding opinion to the President taking account of the circumstances of the offence and the applicant’s character. 2. The Court’s assessment 110. The alleged violation consisted in having exposed the applicant, by extraditing him to the United States, to the risk of an irreducible life sentence without parole, in breach of the requirements of Article 3 of the Convention. 111. The Court will begin its examination of the matter before it with a number of general considerations on the state of its case-law on Article 3, dealing first of all with life sentences and then going on to the removal of aliens from the national territory. It will subsequently address the issue of the application of the principles on life sentences to the specific situation of the applicant, who has been extradited. a) Principles applicable to life imprisonment 112. It is well-established in the Court’s case-law that the imposition of a sentence of life imprisonment on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention (see Kafkaris, cited above, § 97, and references cited therein), provided that it is not grossly disproportionate (see Vinter and Others, cited above, §§ 88 and 89). The Court has, however, held that the imposition of an irreducible life sentence on an adult may raise an issue under Article 3 (see Kafkaris, cited above, § 97). 113. This latter principle gives rise to two further ones. First of all, Article 3 does not prevent life prison sentences from being, in practice, served in their entirety. What Article 3 does prohibit is that a life sentence should be irreducible de jure and de facto. Secondly, in determining whether a life sentence in a given case can be regarded as irreducible, the Court seeks to ascertain whether a life prisoner can be said to have any prospect of release. Where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 (see Kafkaris, cited above, § 98, and references cited therein). 114. Until recently the Court had held that the sole possibility of adjustment of a life sentence was sufficient to fulfil the requirements of Article 3. It had thus ruled that the possibility of early release, even where such a decision was only at the discretion of the Head of State (see Kafkaris, cited above, § 103) or the hope of Presidential clemency in the form of either a pardon or a commutation of sentence (see Iorgov v. Bulgaria (no. 2), no. 36295/02, §§ 51 to 60, 2 September 2010) was sufficient to establish such a possibility. 115. In Vinter and Others, cited above, the Court re-examined the problem of how to determine whether, in a given case, a life sentence could be regarded as reducible. It considered this issue in the light of the prevention and rehabilitation aims of the penalty (§§ 112 to 118). With reference to a principle already set out in the Kafkaris judgment, the Court pointed out that if a life sentence was to be regarded as reducible, it should be subject to a review which allowed the domestic authorities to consider whether any changes in the life prisoner were so significant, and such progress towards rehabilitation had been made in the course of the sentence, as to mean that continued detention could no longer be justified on legitimate penological grounds (§ 119). Furthermore, the Court explained for the first time that a whole-life prisoner was entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence would take place or could be sought. Consequently, where domestic law did not provide any mechanism or possibility for review of a whole-life sentence, the incompatibility with Article 3 on this ground already arose at the moment of the imposition of the whole-life sentence and not at a later stage of incarceration (§ 122). b) Principles applicable to removal of aliens 116. Under well-established case-law, protection against the treatment prohibited under Article 3 is absolute, and as a result the extradition of a person by a Contracting State can raise problems under this provision and therefore engage the responsibility of the State in question under the Convention, where there are serious grounds to believe that if the person is extradited to the requesting country he would run the real risk of being subjected to treatment contrary to Article 3 (see Soering v. United Kingdom, 7 July 1989, § 88, Series A no. 161). The fact that the ill-treatment is inflicted by a non-Convention State is beside the point (see Saadi, cited above, § 138). In such cases Article 3 implies an obligation not to remove the person in question to the said country, even if it is a non-Convention State. The Court draws no distinction in terms of the legal basis for removal; it adopts the same approach in cases of both expulsion and extradition (see Harkins and Edwards, cited above, § 120, and Babar Ahmad and Others, cited above, § 168). 117. Moreover, the Court reiterates that it is acutely conscious of the difficulties faced by States in protecting their populations against terrorist violence, which constitutes, in itself, a grave threat to human rights. It is therefore careful not to underestimate the extent of the danger represented by terrorism and the threat it poses to society (see Othman (Abu Qatada) v. United Kingdom, no. 8139/09, § 183, ECHR 2012, and the references cited therein). It considers it legitimate, in the face of such a threat, for Contracting States to take a firm stand against those who contribute to terrorist acts ( ibid ). Lastly, the Court does not lose sight of the fundamental aim of extradition, which is to prevent fugitive offenders from evading justice, nor the beneficial purpose which it pursues for all States in a context where crime is taking on a larger international dimension (see Soering, cited above, § 86). 118. However, none of these factors have any effect on the absolute nature of Article 3. As the Court has affirmed on several occasions, this rule brooks no exception. The principle has therefore had to be reaffirmed on many occasions since Chahal v. the United Kingdom (15 November 1996, §§ 80 et 81, Reports of Judgments and Decisions 1996-V), to the effect that it is not possible to make the activities of the individual in question, however undesirable or dangerous, a material consideration or to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of the State is engaged under Article 3 (see Saadi, cited above, § 138; see also Daoudi v. France, no. 19576/08, § 64, 3 December 2009, and M. S. v. Belgium, no. 50012/08, §§ 126 and 127, 31 January 2012). 119. In order to establish such responsibility, the Court must inevitably assess the situation in the requesting country in terms of the requirements of Article 3. This does not, however, involve making the Convention an instrument governing the actions of States not Parties to it or requiring Contracting States to impose standards on such States (see Soering, cited above, § 86, and Al-Skeini and Others v. United Kingdom [GC], no. 55721/07, § 141, ECHR 2011). In so far as any liability under the Convention is or may be incurred, it is incurred by the extraditing Contracting State by reason of its having taken action which has the direct consequence of exposing an individual to proscribed ill-treatment (see Soering, cited above, § 91; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005 ‑ I; and Saadi, cited above, § 126). 120. If the extradition is likely to have consequences in the requesting country which are incompatible with Article 3 of the Convention, the Contracting State must not extradite. It is a matter of ensuring the effectiveness of the safeguard provided by Article 3 in view of the serious and irreparable nature of the alleged suffering risked (see Soering, cited above, § 90). c) Application of the principles to the present case 121. The Court notes that the applicant has been extradited to the United States, where he is being prosecuted on charges relating to al-Qaeda-inspired acts of terrorism, and that if he is found guilty and convicted of some of these offences he is liable to a maximum discretionary whole-life prison sentence. The sentence is discretionary in that the judge can impose a lighter penalty, with the option of imposing a fixed-term sentence. 122. The question to be addressed by the Court is whether, in view of the risk incurred, the applicant’s extradition was in violation of Article 3 of the Convention. The Court has several times in the past dealt with the issue of the risk of a whole-life sentence. In every case it has attempted to determine, on the basis of the diplomatic assurances provided by the requesting country, whether the extradition of the persons concerned did indeed expose them to such a risk, and if so, whether the life sentence could be reduced so that they had a hope of being released (see, among other authorities, Nivette v. France (dec.), no. 44190/98, ECHR 2001-VII; Einhorn v. France (dec.), no. 71555/01, ECHR 2001-XI; Salem v. Portugal (dec.), no. 26844/04, 9 May 2006; Olaechea Cahuas v. Spain, no. 24668/03, ECHR 2006-X; and Schuchter v. Italy, (dec.), no. 68476/10, 11 October 2011). 123. This issue arose once again in the cases of Harkins and Edwards and Babar Ahmad and Others, cited above. Most of the applicants in these cases had been threatened with extradition from the United Kingdom to the United States, where they faced prosecution for offences relating to al-Qaeda-inspired acts of terrorism and, in the event of conviction, were liable to mandatory or discretionary life sentences. 124. Drawing on its case-law on life imprisonment in the domestic system as set out in its Kafkaris judgment (see paragraphs 112 to 114 above), the Court held that, in the absence of gross disproportionality, a discretionary life sentence without parole would only raise an issue under Article 3 where it could be shown that the applicant’s continued imprisonment could no longer be justified on any legitimate penological grounds, and that the sentence was irreducible de facto and de jure (see Harkins and Edwards, cited above, § 135, and Babar Ahmad and Others, cited above, §§ 241 and 242). 125. The Court subsequently held that the applicants, who had not been convicted, still less begun serving any sentence imposed as a result of such conviction, had not shown that in the event of extradition their incarceration in the United States would not serve any legitimate penological purpose. It deemed it still less certain that if that point were ever reached, the US authorities would refuse to avail themselves of the available mechanisms to reduce their sentences (see Harkins and Edwards, cited above, §§ 140 and 142, and Babar Ahmad and Others, cited above, §§ 130, 131 and 243). The Court concluded that the risk of imposition of life sentences was no obstacle to the applicants’ extradition. 126. In the present case the Court notes that before his extradition the applicant had been in a situation very similar to that of the applicants in the case of Babar Ahmad and Others. 127. In line with the approach adopted in that case, the Court considers that in view of the gravity of the terrorist offences with which the applicant is charged and the fact that the sentence can only be imposed after the trial court has taken into consideration all relevant mitigating and aggravating factors, a discretionary life sentence would not be grossly disproportionate (see Babar Ahmad and Others, cited above, § 243). 128. The respondent Government essentially argued that in order to determine the conformity of this sentence with Article 3 of the Convention in the context of extradition, the “test” which the Court applied in the cases of Harkins and Edwards and Babar Ahmad and Others must also apply here and that there was no justification in the instant case for discarding this “test” on the basis of the more recent case-law established by the Vinter and Others judgment. 129. According to the Government, regard must be had to the fact that the applicant was extradited for the sole purpose of prosecution, that he has not yet been convicted and that it is therefore impossible to determine, before conviction, whether the point at which his incarceration would no longer serve any penological purpose would ever come, or to speculate on the manner in which, at that particular moment, the US authorities would implement the available mechanisms. In the Government’s view, the fact that the Court held in Vinter and Others (§ 122) that the starting time for determining conformity with Article 3 of the Convention was the date of imposition of the life sentence was irrelevant to the present case because the applicant has not yet been convicted. 130. The Court considers that it must reject this argument because it in effect obviates the preventive aim of Article 3 of the Convention in matters of removal of aliens, which is to prevent the persons concerned from actually suffering a penalty or treatment of a level of severity proscribed by this provision. The Court reiterates that Article 3 requires Contracting States to prevent the infliction of such treatment or the implementation of such a penalty (see paragraph 120 above). Furthermore, the Court holds, as it has done in all extradition cases since Soering, that it must assess the risk incurred by the applicant under Article 3 ex ante – that is to say, in the present case, before his possible conviction in the United States – and not ex post facto, as suggested by the Government. 131. The Court’s task is to ensure that the applicant’s extradition was compatible with Article 3 and therefore to consider whether the discretionary life sentence to which the applicant is liable fulfils the criteria which it has established in its case-law on this matter (see paragraphs 112 to 115 above). 132. In this connection, the Government affirmed that the US system fulfilled both the requirements set out by the Court in its Kafkaris judgment and the new criteria laid down by the Court in Vinter and Others. They submitted that the life sentence which the applicant risked incurring was reducible de jure because he would be able, under the US Constitution, to apply for a Presidential pardon or a commutation of sentence. He could submit such an application at any time after the conviction has become final, and as many times as he wished. His request would be considered by the Pardon Attorney, who would issue a non-binding opinion to the President. The grounds on which the applicant could obtain a pardon were, in the Government’s view, sufficiently broad, and in any case broader than those used in the United Kingdom, as assessed in the Vinter and Others judgment. The discretionary life sentence was also reducible de facto. The Government referred to the diplomatic assurances and statistics provided by the US authorities showing that all the US Presidents had used their powers of pardon and/or commutation of sentence and that they had previously granted such facilities to persons sentenced to life imprisonment or imprisoned for offences relating to national security. 133. The applicant submitted that his only “hope of release” lay in the prospects of success, which were de facto non-existent in the aftermath of the 11 September 2001 terrorist attacks, of an application for a Presidential pardon or commutation of sentence. This possibility, which was completely at the discretion of the executive, was no guarantee and was based on no predefined criterion. That being the case, the discretionary life sentence which he might incur could not be considered reducible de jure and de facto within the meaning of the Court’s Vinter and Others judgment. 134. The Court understands the US legal provisions referred to in the diplomatic note of 10 August 2010 provided by the US authorities as not providing for possible release on parole in the event of a life sentence, whether mandatory or discretionary, but infers that there are several possibilities for reducing such a sentence. The sentence can be reduced on the basis of substantial cooperation on the part of the prisoner in the investigation of his case and the prosecution of one or more third persons. It can also be reduced for compelling humanitarian reasons. Furthermore, prisoners may apply for commutation of their sentence or for a Presidential pardon under the US Constitution (see paragraphs 27 and 79 to 83 above). 135. The Court further notes that despite the express requirement stipulated on 10 June 2010 by the Indictments Division of the Brussels Court of Appeal in its opinion on the applicant’s extradition (see paragraph 26 above), the US authorities have at no point provided an assurance that the applicant would be spared a life sentence or that, should such a sentence be imposed, it would be accompanied by a reduction or commutation of sentence (see, by contrast, Olaechea Cahuas, cited above, § 43, and Rushing v. Netherlands (dec.), no. 3325/10, § 26, 27 November 2012). It therefore does not have to ascertain, in this case, whether the assurances provided by the requesting authorities are sufficient, in terms of their content, to guarantee that the applicant is protected against the risk of a penalty incompatible with Article 3 of the Convention. It considers that in any case the US authorities’ explanations concerning sentencing and their references to the applicable provisions of US legislation on sentence reduction and Presidential pardons are very general and vague and cannot be deemed sufficiently precise (see Othman (Abu Qatada), cited above, § 189). 136. The Court now comes to the central issue in the present case, which involves establishing whether, over and above the assurances provided, the provisions of US legislation governing the possibilities for reduction of life sentences and Presidential pardons fulfil the criteria which it has laid down for assessing the reducibility of a life sentence and its conformity with Article 3 of the Convention. 137. No lengthy disquisitions are required to answer this question: the Court needs simply note that while the said provisions point to the existence of a “prospect of release” within the meaning of the Kafkaris judgment – even if doubts might be expressed as to the reality of such a prospect in practice – none of the procedures provided for amounts to a review mechanism requiring the national authorities to ascertain, on the basis of objective, pre-established criteria of which the prisoner had precise cognisance at the time of imposition of the life sentence, whether, while serving his sentence, the prisoner has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds (see paragraph 115 above). 138. Under these conditions, the Court considers that the life sentence liable to be imposed on the applicant cannot be described as reducible for the purposes of Article 3 of the Convention within the meaning of the Vinter and Others judgment. By exposing the applicant to the risk of treatment contrary to this provision the Government engaged the respondent State’s responsibility under the Convention. 139. The Court accordingly concludes that the applicant’s extradition to the United States of America amounted to a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 140. The applicant complained that his extradition to the United States had been in breach of the interim measure indicated by the Court in accordance with Rule 39 of its Rules of Court, and that the extradition had therefore amounted to a violation of his right of individual petition. He relied on Article 34 of the Convention, which reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” Rule 39 of the Rules of Court provides as follows: “1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings. 2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers. 3. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may request information from the parties on any matter connected with the implementation of any interim measure indicated.” A. The parties’ submissions 141. The applicant submitted that his extradition in contravention of the interim measure indicated by the Court had been decided without any regard to legal considerations and had stemmed from a deliberate political decision based on fallacious reasons. The Government provided no evidence to substantiate the applicant’s so-called dangerousness; moreover, the applicant had not been the subject of any investigation consequent upon any attempted escape or acts of proselytising; on the contrary, all the opinions of the governors of the prisons in which the applicant had been held mentioned his irreproachable behaviour. The only reason for the Belgian Government’s action had been a political determination to hand the applicant over to the US authorities as quickly as possible and to avoid a Court judgment finding a violation of Article 3 in the event of extradition. This determination had in fact long been in evidence, as could be seen by the repeated requests for the lifting of the interim measure while the appeal pending before the Conseil d’Etat was not of suspensive effect vis-à-vis the decision to extradite. In so doing the Government had irreversibly infringed the applicant’s right of individual petition, as he now found it legally impossible, because of his extradition, and materially impossible, because of his solitary confinement in a prison virtually cut off from the outside world, to usefully pursue his application to the Court. 142. The Government first of all pointed out that according to the Court’s case-law, particularly the Mamatkulov and Askarov judgment (cited above, § 108), the purpose of an interim measure was to facilitate the exercise of the right of individual petition secured under Article 34 of the Convention, and therefore to preserve the subject of the application when the Court considered that there was a risk of the applicant suffering irreparable damage. In the instant case, however, the Court should have deduced from the inadmissible nature of the request (see paragraph 39 above) that the interim measure lacked any real justification. 143. Secondly, the Government expounded the reasons for which it had extradited the applicant on 3 October 2013. The extradition had been decided in the wake of the judgment delivered by the Conseil d’Etat on 23 September 2013 explaining in detail, and with full knowledge of the Court’s case-law, why the applicant’s complaints of a violation of the Convention were unfounded. Both the Minister and the Conseil d’Etat had been assured, by virtue of the guarantees provided by the US authorities, that the applicant would not be exposed to treatment contrary to Article 3 of the Convention. Furthermore, the applicant had posed a threat to law and order in Belgium because of his proselytising in prison, his contacts with extremist jihadist circles and his attempts to escape, and the longer he remained in prison the more likely it had become that the investigating judicial bodies would order his release. The Government had not wished to run the risk of being unable to honour its commitment to hand over the applicant to the United States because he had escaped or been released. B. The Court’s assessment 144. The Court recently reiterated, in the case of Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 211 to 213, ECHR 2013 (extracts), the crucial importance of and the vital role played by interim measures under the Convention system. The Court now refers to this judgment. 145. Considering the present case in the light of these principles, the Court reiterates that on 6 December 2011 it acceded to the applicant’s request to apply Rule 39 of the Rules of Court, and indicated that in the interests of the parties and the smooth running of the proceedings before it, the Belgian Government should not extradite the applicant to the United States. It also reiterates that it thrice refused to accede to the Government’s request to lift the interim measure and explained on several occasions – the last time being on 18 June 2013 – that the said measure had been indicated until the conclusion of the proceedings before it. The Government had therefore been fully aware of the scope of the measure. 146. On 3 October 2013 Belgium nevertheless extradited the applicant to the United States (see paragraph 62 above). 147. The Government suggested that the interim measure had been unjustified because it was “premature” and that the Court should have reviewed its justification after an assessment of admissibility. 148. The Court observes that it indicated to the Belgian Government that it should stay the extradition on the day of notification of the ministerial decree granting the applicant’s extradition (see paragraph 39 above). Although at that time the applicant could have brought an application for judicial review of this decree before the Conseil d’Etat, such action lacked any suspensive effect vis-à-vis extradition and therefore did not fulfil the Court’s requirements in terms of effectiveness under Article 13 of the Convention (see, mutatis mutandis, Čonka v. Belgium, no. 51564/99, § 83, ECHR 2002 ‑ I; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, ECHR 2012; and De Souza Ribeiro v. France [GC], no. 22689/07, § 82, ECHR 2012). Thus, in accordance with case-law, the fact that this remedy had not been exhausted was immaterial. 149. The Government acknowledged that the Belgian authorities had acted in breach of the interim measure indicated by the Court. They considered, however, that this attitude had been justified in that it had been ascertained that the applicant would not be exposed to treatment contrary to the Convention and because the utmost had to be done to ensure his handover to the US authorities owing to the risk of his escape or a judicial decision to release him. The proceedings before the Court had jeopardised Belgium’s commitments to the United States, and extending them had increased the risk of the applicant evading the Belgian authorities. 150. The Court notes that the respondent State deliberately and irreversibly lowered the level of protection of the rights set out in Article 3 of the Convention which the applicant had endeavoured to uphold by lodging his application with the Court. The extradition has, at the very least, rendered any finding of a violation of the Convention otiose, as the applicant has been removed to a country which is not a Party to that instrument, where he alleged that he would be exposed to treatment contrary to the Convention. 151. The Court considers that none of the arguments put forward by the Belgian Government justified its non-compliance with the interim measure. Although the Government have never concealed from the Court their awkward position vis-à-vis the US authorities and their wish to have the interim measure lifted, at no point did they mention any possible attempts to explain the situation to those authorities or to find an alternative to the applicant’s detention whereby the Belgian authorities could still keep him under surveillance. Furthermore, knowing that the Court had examined all the arguments advanced by the Government’s with a view to persuading it to terminate the measure, including the diplomatic assurances provided by the US authorities, and had rejected them, it was not for the Belgian State, in the wake of the judgment of the Conseil d’Etat, to substitute its own appraisal for the Court’s assessment of these assurances and the merits of the application and decide to override the interim measure indicated by the Court. 152. The Court also reiterates that the effective exercise of the right of petition requires it to be able, throughout the proceedings before it, to examine the application in accordance with its usual procedure. 153. The fact is that in the instant case the applicant is being held in solitary confinement in a prison in the United States, and, as ascertained by his lawyer, is enjoying very little contact with the outside world (see paragraphs 64 to 67 above). He does not seem to have been able to have direct contact with his representative before the Court. These factors are enough for the Court to consider that the Government’s actions have made it more difficult for the applicant to exercise his right of petition and that the exercise of the rights secured under Article 34 of the Convention have therefore been impeded (see, mutatis mutandis, Shtukaturov v. Russia, no. 44009/05, § 147, 27 March 2008, and Toumi v. Italy, no. 25716/09, § 76, 5 April 2011). 154. In the light of the information in its possession, the Court concludes that by deliberately failing to comply with the interim measure indicated in pursuance of Rule 39 of the Rules of Court, the respondent State failed to honour the obligations incumbent on it under Article 34 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION A. Other complaint of a violation of Article 3 155. The applicant alleged in substance that his conditions of detention in Belgium had constituted treatment contrary to Article 3 of the Convention. He complained of the constant transfers from one prison to another, the conditions under which the transfers had taken place and the special security measures applied to him during his incarceration. He backed up this complaint with several reports drawn up by psychiatrists pointing to the negative effects of such a situation on his mental health. 156. The Government pointed out that the applicant had not brought any judicial action complaining of his conditions of detention and the transfers. 157. In the absence of any proceedings before the domestic courts concerning this complaint, the Court considers that it must be dismissed for non-exhaustion of domestic remedies. 158. Consequently, this part of the application is inadmissible within the meaning of Article 35 § 1 of the Convention and must be dismissed in accordance with Article 35 § 4. B. Complaint of a violation of Article 6 § 1 of the Convention 159. The applicant submitted that he had not had the benefit of a fair trial or the safeguards which should accompany criminal proceedings during the judicial procedure for enforcement of the US arrest warrant. He relied on Article 6 § 1 of the Convention, which provides that: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” 160. The Court reiterates that extradition proceedings do not involve determining an applicant’s civil rights and obligations and do not relate to the merits of any criminal charge against him or her within the meaning of Article 6 § 1 of the Convention (see Raf v. Spain (dec.), no. 53652/00, 21 November 2000; Peñafiel Salgado v. Spain (dec.), no. 65964/01, 16 April 2002; Sardinas Albo v. Italy (dec.), no. 56271/00, ECHR 2004-I; Cipriani v. Italy (dec.), no. 22142/07, 30 March 2010; and Schuchter, decision cited above). Therefore Article 6 § 1 of the Convention is inapplicable to the impugned extradition proceedings. 161. Consequently, this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 a), and must be dismissed in pursuance of Article 35 § 4. C. Complaint of a violation of Article 4 of Protocol No. 7 162. In his initial application, the applicant alleged in substance that his extradition violated Article 4 of Protocol No. 7, which reads as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.” Protocol No. 7 came into force in respect of Belgium on 1 July 2012. 163. The applicant invited the Court to find that the arrest warrant issued on 16 November 2007 by the District Court of the District of Columbia could not have been declared enforceable without violating the ne bis in idem principle. He submitted that an analysis of the criminal file and the decisions given disclosed that all the “overt acts” listed by the US authorities in support of the first charge and repeated in support of the other charges had been mentioned and/or detailed during the investigation conducted in Belgium. 164. Even supposing that this part of the application is compatible ratione temporis with the Convention, the Court reiterates its case-law to the effect that Article 4 of Protocol No. 7 does not secure the ne bis in idem principle in respect of prosecutions and convictions in different States (see, among other authorities, Gestra v. Italy (dec.), no. 21072/92, 16 January 1995; Amrollahi v. Denmark (dec.), no. 56811/00, 28 June 2001; Da Luz Domingues Ferreira v. Belgium (dec.), no. 50049/99, 6 July 2006; and Sarria v. Poland (dec.), no. 45618/09, 18 December 2012). 165. At all events, the ministerial decree granting the applicant’s extradition explained that US law drew a clear distinction between the actual offences for which extradition was requested and “overt acts”, which were mere factors presented in support of the charges (see paragraph 31 above). The Conseil d’Etat noted that comparison of all the “overt acts” with the Belgian charges showed that “the former have no territorial link with the Kingdom of Belgium, constituting a set of acts which serve as the constituent elements of the four charges presented by the US authorities” (see paragraph 37 above). The Court sees nothing arbitrary or unreasonable in these interpretations and conclusions. 166. Consequently, this part of the application is incompatible ratione materiae with the provisions of the Convention, or is at least manifestly ill-founded within the meaning of Article 35 § 3 a), and must be dismissed in pursuance of Article 35 § 4. D. Complaint of a violation of Article 8 of the Convention 167. Lastly, the applicant complained that his extradition to the US constituted an interference with his private and family life in Belgium, in breach of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 168. The Court notes that the applicant’s extradition raises no issues regarding the criterion that interference must be in accordance with the law and pursue a legitimate aim. 169. As to the necessity of the measure, the Court reiterates that it is only in exceptional circumstances that an applicant’s private or family life in a Contracting State can outweigh the legitimate aim pursued by his or her extradition (see King v. the United Kingdom (dec.), no. 9742/07, § 29, 26 January 2010, and Babar Ahmad and Others, cited above, § 252). 170. In the present case the applicant submitted that he had been separated from his partner, who lived in Belgium and whom he wished to marry. In the Court’s view, that does not constitute an exceptional circumstance preventing the applicant’s extradition. Despite the great geographical distance between Belgium and the United States and the resultant limitation on contacts between the applicant and his partner should he be convicted and remain in prison, the Court must take into account the gravity of the offences for which the applicant is being prosecuted in the United States. It considers that the public interest in extraditing the applicant may be seen as weighing more heavily in terms of all the interests involved. For this reason, and in view of Belgium’s interest in honouring its commitments to the United States – without prejudice to its obligation to comply with the other provisions of the Convention, particularly Articles 3 and 34 – the Court considers that the applicant’s extradition was not in breach of Article 8 of the Convention. 171. Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention and must be dismissed in accordance with Article 35 § 4. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 172. Article 41 of the Convention provides as follows: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 173. The applicant claimed EUR 1,000,000 in respect of the damage which he had suffered owing to his extradition in breach of the Convention. He stated that this sum covered both pecuniary and non-pecuniary damage. Where pecuniary damage was concerned, he explained that since he was incarcerated in the United States he needed substantial financial resources in order to pay for the services of a legal team capable of defending him. 174. The Government considered this amount grossly excessive, observing that care had to be taken, in the applicant’s case, to ensure that any major compensatory sums did not lead to financing the international terrorism in which he was still involved owing to his numerous contacts with radical Islamist movements. 175. In the absence of evidence enabling it to assess whether the alleged pecuniary damage has been proved and to calculate the sums claimed to compensate for such damage, the Court dismisses the applicant’s claims in this respect. 176. On the other hand the Court considers that the applicant has suffered non-pecuniary damage owing to his extradition to the United States. Ruling on an equitable basis in accordance with Article 41 of the Convention, it awards him EUR 60,000 in respect of non-pecuniary damage. B. Costs and expenses 177. The applicant also claimed reimbursement of the costs and expenses incurred for his defence before the Belgian courts and before the Court to a total of EUR 51,350. A first bill of costs mentions a sum of EUR 23,900 for the proceedings before the domestic courts and EUR 7,400 for the applicant’s defence before the Court, calculated on the basis of an hourly rate of EUR 100. The amounts awarded in respect of legal assistance, that is to say a total of EUR 9,550, must be deducted from those sums. The remaining costs were incurred by mailing and typing expenses. A second bill of costs was drawn up for the domestic proceedings conducted on the occasion of the applicant’s extradition and the continuation of proceedings before the Court, to a total of EUR 15,990. 178. According to the Court’s well-established case-law, an applicant is entitled to reimbursement of costs and expenses under Article 41 only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, they are only recoverable to the extent that they relate to the violation found (see, mutatis mutandis, M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 418, ECHR 2011, and Creangă v. Romania [GC], no. 29226/03, § 130, 23 February 2012). In this connection the Court reiterates that the applicant’s claims were only partially successful before it. 179. Making its own estimate on the basis of the information available, the Court considers it reasonable to award the applicant EUR 30,000 to cover all costs and expenses. C. Default interest 180. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that the applicant’s extradition to the United States entailed a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It considered that the life sentence to which the applicant was liable in the United States was irreducible inasmuch as US law provided for no adequate mechanism for reviewing this type of sentence, and that it was therefore contrary to the provisions of Article 3. The Court also held that there had been a violation of Article 34 (right of individual application) of the Convention: the failure of the Belgian State to observe the suspension of extradition indicated by the Court had irreversibly lowered the level of protection of the rights secured under Article 3 of the Convention, which the applicant had attempted to uphold by lodging his application with the Court, and had interfered with his right of individual application.