Four years after Sanchez-Sanchez v. the United Kingdom, the case of Beverly McCallum invites a precise question to the extradition judge. Once a mandatory life sentence has been ruled out, what is actually known about the minimum time the person is likely to spend in prison?
On 23 May 2024, in Michigan, Beverly McCallum was sentenced to forty to sixty years’ imprisonment for the second-degree murder of her husband, committed in 20021. Born in 1960, she was over sixty when sentence was passed. Two years earlier, the Grand Chamber of the European Court of Human Rights had examined her complaint concerning her extradition from Italy. An American undertaking had then weighed in the Strasbourg decision. The prosecutor had agreed to try her on a charge that ruled out a mandatory sentence of life imprisonment without parole. That undertaking concerned the charge. The minimum term of the sentence remained to be determined.
Why return to this Italian case under a heading devoted to the United Kingdom? Because on 3 November 2022 the Grand Chamber made public a judgment and a decision that should be read together. In Sanchez-Sanchez v. the United Kingdom, it defined what a requested person must establish in order to resist extradition under Article 3 of the Convention2. In McCallum v. Italy, it applied that method to an American request whose terms had changed in the course of the proceedings3. The sentence since imposed in Michigan makes it possible to measure the precise scope of that change.
In Sanchez-Sanchez, the applicant, a Mexican national sought by the United States for drug-trafficking offences, argued that a conviction could lead him to spend the rest of his life in prison. Article 3 prohibits inhuman or degrading punishment. In extradition proceedings, the judge must therefore assess a risk before the foreign trial has taken place. The judge does not yet know whether the person will be convicted and, if so, what sentence will be imposed.
The Grand Chamber structures this assessment in two stages. First, the requested person must adduce evidence showing substantial grounds for believing that, if convicted, he or she will personally face a real risk of life imprisonment without parole. Once such evidence has been adduced, it is for the Government to dispel any doubts raised by it. The statutory maximum matters, but reading it alone does not settle the question where the foreign judge has a choice. One must also consider what is known about the charges, the role attributed to the person and the sentences actually imposed in comparable situations. In the British case, the Court found that this first evidentiary threshold had not been met. It concluded that extradition would not entail a violation of Article 34.
If the first threshold is crossed, the judge turns to a second question. Does the law of the requesting State provide, from the moment of sentencing, a mechanism allowing a later review of whether the prisoner’s development, progress or other personal circumstances justify release? On this point the Court distinguishes the substantive requirement from procedural modalities. The European State that decides to extradite must satisfy itself that the required mechanism exists. It is not for that State to impose on the third State all the procedural safeguards required of a Contracting State for its own life prisoners. In doing so, the Grand Chamber departed from the approach taken in Trabelsi v. Belgium5.
The order of these two questions is decisive for the defence. If the personal risk is not sufficiently documented at the first stage, the judge may rule without addressing the question that matters most to the requested person and to his or her family: under what conditions will that person one day be able to apply for release?
Beverly McCallum initially faced a charge of first-degree murder. A conviction on that charge exposed her, in Michigan, to mandatory life imprisonment without parole. On 3 December 2021, while the European proceedings were pending, the United States Embassy in Rome transmitted the undertaking of the Eaton County Prosecuting Attorney to prosecute her for second-degree murder; the charge of disinterment and mutilation of a dead body was maintained. That change had a tangible consequence. The trial judge regained discretion: Michigan law punishes second-degree murder with life imprisonment or any term of years, and even a life sentence imposed on that charge leaves open the possibility of parole. The Italian Minister of Justice signed a new extradition order, and the applicant was surrendered to the United States on 8 July 2022. The Grand Chamber, ruling thereafter, declared the Article 3 complaint manifestly ill-founded6.
What happened next calls for a careful reading. The American verdict did indeed concern second-degree murder, as well as the charge of disinterment and mutilation of a dead body. The sentence imposed at first instance in May 2024, forty to sixty years, is a term of years. These facts reveal no contradiction between the charge announced to Italy and the one tried. They do, however, reveal everything the diplomatic undertaking left open. Between mandatory life and a minimum term of forty years, the legal difference is considerable. For a person already in her sixties, it remains to be explained what difference it makes to the prospect of regaining her freedom within her lifetime.
The American sentence does not allow the European decision to be rewritten with hindsight. In 2022, the Grand Chamber knew neither the verdict nor the sentence that would be chosen in 2024. Nor can it be inferred from an accused person’s age alone that a long term of years amounts to an irreducible life sentence within the meaning of Article 3. The question the case raises is more precise. Where the file already makes it possible, before surrender, to identify a documented risk of an exceptionally long minimum term, how does the judge respond to that element?
An extradition file gains in precision when it distinguishes three dates: the date on which the person could be sentenced, the date on which his or her situation could first be reviewed, and the date on which release would become legally possible. These dates may depend on the verdict or on the sentence. Where their calculation requires knowing how time already spent in custody will be credited, the defence should say so expressly. Adding forty years to an accused person’s age on the day of sentencing is not enough to establish the first date of eligibility for release.
The same precision is required when reading a diplomatic assurance. If the foreign prosecutor undertakes to drop a charge, the judge can identify the risk that the undertaking removes. The judge can then ask which sentences remain available on the charge retained, whether a minimum applies and which authority will be able to intervene once sentence has been passed. Expert evidence on foreign law is particularly illuminating when it applies those rules to the individual case and sets out the uncertainties that remain.
Finally, a reasoned decision should allow the person concerned to understand where the argument failed. Did the judge consider that the convictions produced for comparison concerned facts that were too different? Did the judge find it sufficiently established that a review would be available? Or did the argument in fact concern the length of a term of years, a question distinct from the life imprisonment examined in Sanchez-Sanchez7? These answers have different consequences. For the requested person, they also determine which evidence would be relevant in support of an appeal.
Our proposal rests on a duty to give reasons. Where a requested person produces precise evidence of his or her age, the minimum term he or she faces and the rules that will govern its enforcement, the extradition judge should explain what difference that evidence makes to the assessment. The judge may find it insufficient. The judge may also find that a decisive element is missing from the file and ask the requesting State to clarify it. In either case, the assessment retains its preventive function. It takes place at the moment when the answer can still weigh on the decision to surrender the person. In McCallum, preventive review took place both in Italy and in Strasbourg. The European Court had first indicated to Italy that surrender should be stayed. After the American diplomatic note and the parties’ observations, the Grand Chamber lifted that measure on 21 January 2022. When it later ruled on the admissibility of the complaint, on 21 September 2022, the extradition had already taken place8. The concrete scope of the American undertaking therefore mattered as early as the decision to lift the interim measure.
The McCallum case gives this requirement a face and a measure. Before extradition, the American undertaking answered an essential question about the charge. After the trial, the sentence of forty to sixty years brought another to light, just as concrete for the person concerned. When a judge authorises surrender on the basis of a future possibility of release, what does that judge know about the moment at which that possibility could, for this person, become real?
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After the final decision of the highest national court, a case may be submitted to us directly, by the client or by their lawyer.