Brief filed: 10/26/2021
McCallum v. Italy
Grand Chamber of the European Court of Human Rights;
The McCallum case – communicated to the Italian Government on 28 May 2021 – was relinquished in favour of the Grand Chamber on 7 September 2021. This amicus curiae intervention develops arguments advanced in the amicus curiae intervention by the same authors that was introduced to the First Section on 2 August 2021.
Article 3 of the ECHR absolutely prohibits the infliction of torture and inhuman or degrading treatment or punishment. In a series of major decisions since 2013, the Grand Chamber of the ECtHR has spelt out the criteria according to which sentences of life imprisonment must be implemented to ensure that Article 3 is not infringed. If life sentences meet these criteria, they can be imposed and implemented consistently with Article 3. Article 3 also governs extradition from member states. When a member state receives an extradition request, it has a duty to assess prospectively whether allowing extradition may result in a life sentence in the requesting state that would infringe Article 3, as interpreted by the ECtHR. This does not impose a burden on a non-member state seeking extradition, but on the member state from which extradition is sought. Such member state must ensure that its actions in allowing extradition do not foreseeably result in the Article 3 rights of a person in its jurisdiction later being infringed by a non-member state. The amici curiae submit in this intervention that the criteria developed by the ECtHR in respect of life imprisonment should be applied when deciding whether Italy is justified in extraditing McCallum to stand trial in Michigan, where she will be sentenced mandatorily to Life Without Parole (LWOP) if she is convicted of first-degree murder.
Davide Galliani, Professor of Public Law, University of Milan; Dirk van Zyl Smit, Emeritus Professor of Comparative and International Penal Law, University of Nottingham; Paul D. Reingold, Emeritus Clinical Professor of Law, University of Michigan; Barbara Bergman, NACDL, Washington DC.