On November 3, 2022, the European Court of Human Rights issued two judgments on whether extradition from a Council of Europe member state to the United States would be in violation of the European Convention on Human Rights. Sanchez-Sanchez v. U.K. concerned an extradition request from the Northern District of Georgia for the trial of Sanchez-Sanchez (a Mexican national) on drug importation and conspiracy charges. Sanchez-Sanchez argued that his extradition to the U.S. would be in violation of Article 3 of the Convention (prohibition of inhuman or degrading treatment) because he would be at risk of a life sentence without possibility of parole. According to a press release from the Court, the Court imposed an adapted approach to its case law on domestic extradition. The Court noted:

. . . in the domestic context, in the event of a finding of a violation of Article 3 of the Convention, the applicant would remain in detention pending the application or introduction of a Convention-compliant review mechanism which could – but would not necessarily – lead to his release earlier than initially intended. Thus, the legitimate penological purposes of incarceration would not be undermined. In contrast, in the extradition context the effect of finding a violation of Article 3 would be that a person against whom serious charges have been brought would never stand trial, unless he or she could be prosecuted in the requested State, or the requesting State could provide the assurances necessary to facilitate extradition (¶ 94).

The Court noted that, in line with its case law, the applicant must demonstrate that there is a real risk that he or she would be given a sentence of life without parole if convicted. If that is the case, the sending state must ascertain whether there is a sentence review process that would take into account whether any grounds for release might apply, e.g., the applicant’s level of rehabilitation. According to the Court, Sanchez-Sanchez had failed to meet this initial burden of proof and because of this, there was no need for the Court to evaluate the existence of sentence review procedures in the U.S. jurisdiction at issue. The Court consequently indicated to the U.K. that it should lift the stay of extradition.

McCallum v. Italy involved the extradition of a U.S. national accused of murdering her husband and the burning of his corpse in Michigan. According to a press release from the Court, At the time she filed her case, she was being detained in Rome, but at the time of the judgment, she was in detention in the U.S. In denying her request to stay her extradition, the Italian authorities referred to the U.S. appeals process, the possibility of a pardon or a commutation of her sentence by the Michigan governor as reasons counseling in favor of extradition. They also felt that there were no reasons to believe that she would be subject to inhuman or degrading treatment there. Several months later, the U.S. authorities sent a diplomatic note to Italy indicating that McCallum would be tried for the lesser offense of second degree murder, which would carry with it the possibility of parole. A new extradition order was issued by Italy, but the Court ordered that it be stayed pending these proceedings. In ultimately holding that the extradition would not violate Article 3, the Court pointed out the importance of Michigan’s diplomatic note, indicating that a lesser charge would be imposed. Citing prior case law, the Court noted that “Diplomatic Notes carry a presumption of good faith and that, in extradition cases, it was appropriate that that presumption be applied to a requesting State which has a long history of respect for democracy, human rights and the rule of law, and which has longstanding extradition arrangements with Contracting States” (¶ 51, citing Harkins & Edwards v. UK, nos. 9146/07 and 32650/07).