76
239. The Commission agrees, in principle, with this distinction. However, the distinction
notwithstanding, the assurances that the death penalty will not be applied must still be analyzed on a
case-by-case basis and must meet certain specific criteria to be deemed reliable. In cases such as the
one at hand, in which arguments have been made concerning the use of summary, secret and arbitrary
execution, with no access to information or any real prospects of monitoring in the requesting State,
and on the use of torture and cruel, inhuman and degrading treatment, the Commission is of the view
that the analysis done must take account of the standards that other international courts and bodies
have established as being relevant in such cases. Those standards are summarized below.
240. On the issue of the assurances that the death penalty will not be applied, in the case of
Harkins and Edwards v. the United Kingdom, the European Court reiterated the standard which holds
that the diplomatic assurances must be clear, sufficient and unequivocal to remove any threat that the
petitioners might be sentenced to death if extradited. The European Court declared this particular case
inadmissible because it found that the assurances given by the United States met those requirements.
The European Court wrote that the United States has a long history of respect for democracy, human
rights and the rule of law.208 In the words of the European Court, in this case, citing Ahmad and others v.
United Kingdom:
the Court recalls its finding in Ahmad and others v. the United Kingdom […] that, in extradition
matters, Diplomatic Notes are a standard means for the requesting State to provide any
assurances which the requested State considers necessary for its consent to extradition.
In Ahmad and others, the Court also recognised that, in international relations, 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
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arrangements with Contracting States. The Court also recalls the particular importance it has
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previously attached to prosecutorial assurances in respect of the death penalty. .
For these reasons, the Court considers that the assurances provided by the Government of
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the United States, the prosecution in Florida and Judge (…) are clear and unequivocal.
241. The question of diplomatic or other assurances has been addressed at greater length in
cases related to the non-application of torture or cruel, inhuman or degrading treatment. Thus, while in
Saadi v. Italy, the European Court did not delve into the issue of diplomatic assurances, it did address
issues related to the determination of the risk as the first step in analysis, the burden of proof in this
regard, and a case-by-case determination. The European Court also established important guidelines for
evaluating the situation in a country, including the type of evidence to be considered.
208
European Court of Human Rights. Harkins and Edwards v. the United Kingdom. Judgment 17 January 2012.
209
European Court of Human Rights. Harkins and Edwards v. the United Kingdom. Judgment 17 January 2012,
paragraph 85.
210
European Court of Human Rights. Harkins and Edwards v. United Kingdom. Judgment 17 January 2012. Para 85.
Citing (Nivette v. France (dec.), no. 44190/08, 14 December 2000).
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86.
European Court of Human Rights. Harkins and Edwards v. the United Kingdom. Judgment 17 January 2012. Para