December 3, 1997
(Part one in a series of articles on the Hanes Case and the American Justice System)

Supreme Court decision in the Hanes couple's case:

Doubts about the American justice system

With the recent decision of the Supreme Court the extradition of the Hanes couple to the US was rejected. According to P�ll Th�rhallsson, the path of the European human rights agreement's watchdog agencies is being followed, who have stretched the agreement's protection outside of its European member area.

The American justice system is part of Icelanders' everyday life. Thus you could say that average Icelanders think they have a better insight into conditions in American prisons than those at Litla-Hraun prison [in Iceland]. American TV shows and movies discuss repeatedly court cases, and it's almost as though the jury system seems incomprehensible among those who have grown up in the Icelandic legal environment, where the idea is that implementation of laws is only the realm of specialists. On the other hand, it is less common that Icelandic courts need to judge that same American legal system, and whether human rights are sufficiently safeguarded there.

That happened, though, in the case of the couple Connie Jean and Donald Hanes, on which a verdict was reached in the Supreme Court last October 17th. In the verdict there appears in a number of ways the influence of the European Human Rights Agreement here in Iceland. This case is multifaceted, and in the verdict there was only a judgement on whether legal basis existed to accept the request from the US for the couple's extradition. In the US they are accused of having taken Connie Jean's granddaughter to Iceland, and thus infringed upon the mother's custody. As is known, the Supreme Court previously reprimanded Icelandic authorities for having handed over the girl to US authorities, who took her out of the country before the couple had a chance to appeal the seizure before the Supreme Court.

Inhumane treatment

The couple built their defense in the extradition case on the fact that they were prepared to leave willingly for the US and face the court there. On the other hand they did not want to accept being extradited unconditionally, and taken in custody to the state of Arizona, where they face charges. The conditions that they set were that they be allowed to be free on a reasonable bail while the case was before the court, and that they would not have to take out any possible sentence in the Maricopa County prison system. The couple's Icelandic lawyer presented detailed evidence showing that inhumane treatment would await them if they were extradited in accordance with the US demand.

First, a very unpleasant trip from their American point of arrival to Arizona would await them, through the inefficient US prisoner transport system.

Secondly, it was argued that the danger existed that the couple would not get an unbiased discussion of their case before the US court, if they were transported as prisoners to Arizona. The media would make an affair of their arrival and draw a picture of them as criminals.

Last but not least, the conditions in the Maricopa County prisons, where they would be kept, were terrible. Extensive evidence to this effect was presented, and it portrays contradictions in American society. The prisons in Phoenix and the surrounding area are among the biggest in the US under a single administration. Their head, police chief Joseph M. Arpaio, is directly elected, and enjoys great support among the general public. He traces his popularity to the toughness he shows convicted criminals those in custody. Thus he has brought back striped uniforms to humiliate prisoners. Prisoners work in public view, chained together in small groups. "I wanted prisoners to hate prison," he says in his autobiography, which is called "America's Toughest Cop". The goal is to have prisoners suffer so badly that they won't want to return.

The media and human rights groups such as Amnesty International have criticised the police chief's punishment policy harshly. Even the American federal government has tried to push for reform in the prisons, as it considers that the situation is an infringement of the US constitution, "because of the excessive use of force on prisoners and heedlessness of acute need for medical attention," as is stated in a report of the American Justice Department from March 26, 1996. To remove Arpaio, authorities in Arizona have attempted to do away with the direct election of police chief, by submitting such a refernedum to the public, but it was voted down.

Judicial proceedings in Strasbourg

A few years ago there would have been little meaning in opposing extradition on the grounds that the Hanes couple have used. Icelandic courts would in all likelihood not have considered it appropriate to conisder the state of human rights in the US. But this case must be considered in the light of the fact that in recent years, European council watchdog agencies, the Human Rights Court and the human rights committee have interpreted the European Human Rights Accord in a wider manner, in such a way that member states bear the responsibility not to send people to foreign countries - whether by sending them away or extradition - if there is a danger that treatment awaits them which infringes on the clauses in the agreement. Protection by the agreement thus reaches outside the agreement area itself. The best-known verdict of this kind is in the so-called Soering case from 1989. A German residing in England had been given the death penalty in the state of Virginia in the US for a crime committed there. The British agreed to the extradition request. The Human Rights Court decided that the British government had the duty not to extradite, because so-called "Death Row" was inhumane. The court decided in other words that the execution itself which awaited him was not against the accord - execution is allowable under the second clause of the agreement - rather it was the American phenomenon whereby those sentenced to death can wait for years in uncertainty whether they will be killed or not. It was shown that on Death Row, all the prisoners take part when one is led to the execution chamber.It can be added that the court found that it did not matter that it was the prisoners themselves who lengthened the time of their stay by legal appeals and pleas for mercy, as the desire to live is a part of human nature that the state in question should count on.

The European Human Rights Court has in other words formed the policy that the accord's defenses extend beyond the member states, for instance in extradition cases. The duty therefore lies on European member states not only to monitor conditions in their own backyard, but also to strive not to send those in their jurisdiction to inhumane treatment elsewhere. No state is excluded, not even the US, "the greatest democracy in the world." The tiny state of Iceland, thus, in order to fulfill the agreement, must carefully examine human rights matters in the superpower US when such a case comes up.

Breaking the "rule of moderation"

It bears noting that all five of the Supreme Court judges who ruled in the case considered that the extradition should be denied. But the reasons cited differ. The majority (3 of 5) took the route of building upon the so-called "rule of moderation": "The defendents have from the beginning of the case declared themselves ready to return to their homeland and face responsibility for their actions. They have at the same time described their unsuccessful efforts to reach an agreement with the American authorities about normal and humane treatment for them upon their return. Their reaction to the extradition request clearly gave Icelandic authorities reason to believe that it was possible to meet the goal of having the defendants face trial in the US, without them needing to face the unpleasantness of being taken into custody, as described above, which would unavoidably have resulted from unconditional extradition. Icelandic authorities thus, given the circumstances and the considerable interests of the defendants, had to agree to their just viewpoint. They could do that by either attempting to broker an agreement between the defendants and the US government, or by setting conditions on the extradition, whereby the defendants had the opportunity to appear in court and defend themselves without being taken into custody beforehand. With either of these two paths, it would have been possible to reach the main goal of the extradition, that the defendants receive just legal treatment of the accusations which they face, before an independent and unbiased jury, in accordance with the 70th clause of the constitution of the Republic of Iceland #33/1994, and the 5th and 6th clauses of the European Human Rights Accord. By doing nothing, despite the well-presented pleadings of the defense, the Icelandic authorities failed in their duty to follow the "rule of moderation" in the execution of their powers. Thus the legal requirements to accept the request of extradition of the defendents to the US have not been fulfilled."

Vital interests

The "rule of moderation," which is built on there, instructs that the government should proceed cautiously and use the most moderate means to achieve its goals in actions that cause hardship to its citizens. This rule's influence has sharply increased in recent years, directly due to the effect of the European human rights accord; it became law in 1993 with the passage of the administrative laws. In this case there have undeniably been strong demands made upon the government concerning legal treatment. It has not commonly been the case that the government acts on behalf of accused parties in negotiations with foreign states on the conditions of extradition.

By using the "rule of moderation" the Supreme Court evades directly passing judgement on the state of human rights in the US. Prison officials in Arizona have interpreted this to mean that in the verdict there is no criticism of the state of the prisons there. It is unavoidable, though, not to draw attention to the fact that the Supreme Court points out the vital interests of the Hanes couple because the government should take care to act in a cautious manner. Those vital interests must reside in the fact that the danger existed that bad conditions and biased legal treatment of their case would await them in the US. Thus, indirectly, an appraisal has been made of the human rights situation in the US. The situation there calls for particular caution by Icelandic authorities.

But more can be read out of the verdict. It is interesting that the Supreme Court particularly implies that with an unconditional extradition, the couple would not recieve just legal treatment before an independent and unbiased court in the US. This is likely drawn from the couple's position that a jury would undeniably be influenced by negative media publicity, should the two be transported in custody to Arizona. There the Supreme Court certainly goes surprisingly far in judging the American legal system on the yardstick of the Icelandic constitution and the human rights accord. It is, of course, hardly without precedent that juries in the US discuss cases where the defendants have been judged in advance by the media. The Supreme Court thus must be expressing general doubts that the jury system fulfills the demands of the Icelandic constitution and the human rights accord. There, in fact, the Supreme Court is not alone, because in the above-mentioned Soering verdict of the European Human Rights Court, it suggests that blatant violations of the rules of legal treatment in a state that requests extradition can cause the state that receives the request to consider the 6th clause of the human rights accord, concerning just legal treatment before a court.

"Unfortunate decision"

It is not possible to discuss this case without turning to the pressure that the US authorities have applied in it. While the case was before the Supreme Court, the American State Department sent the Icelandic government a letter, dated July 18 1997, which says among other things the following about the Reykjav�k District Court decision: "The US wishes to express serious concern to the government of Iceland about this unfortunate decision. It is in particular the view of the US that the refusal of extradition on this basis is nowhere based upon agreement [Morgunbla�i� note: the two nations' agreement of 1906], and is a misunderstanding with respect to the nature of this case. In addition, the refusal of extradition under these conditions would be a negative precedent for the cooperation of the US and Iceland in the execution of the law. The US urges the government of Iceland to perform its contractual duties and order the extradition of Connie Jean Hanes and Donald Hanes as quickly as possible." It is without doubt strange that this letter should be sent while the matter was still in discussion before the court, and it should have been clear that it was not legally possible to take heed of it. An independent and unbiased court can not concede to pressure of this kind. It can be added that the letter was set forth in the Supreme Court case, and of course the Icelandic government has no control over the Supreme Court; it could only await its decision.

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