ECtHR - Soering v. The United Kingdom, Application No. 14038/88, 7 July 1989

Printer-friendly versionPrinter-friendly version
Country of Applicant: 
Germany
Date of Decision: 
07-07-1989
Court Name: 
European Court of Human Rights, Soering v. The United Kingdom, Application No. 14038/88, 7 July 1989
Relevant Legislative Provisions: 
International Law > 1951 Refugee Convention
International Law > UN Convention against Torture
Council of Europe Instruments > ECHR (Sixth Protocol)
Headnote: 

The Court found that in the event of the United Kingdom Secretary of State’s decision to extradite a fugitive indicted of murder in the United States being implemented, there would be a violation of Article 3 due to the possibility of his conviction of a death sentence, and the treatment and punishment he would face on death row in Virginia. 

Facts: 

The case originated with Application No. 14038/88 filed by Mr Jens Soering, a German national, against the UK on 8 July 1988. It was brought before the Court on 25 January 1989 by the European Commission of Human Rights (“the Commission”) on 25 January 1989, by UK on 30 January 1989, and by Germany on 3 February 1989. The object of the request and governmental applications was to obtain a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3, 6 and 13 ECHR. On 26 January 1989 the Chamber was constituted and then relinquished jurisdiction in favour of the plenary Court under Rule 50.

The applicant had been a student at the University of Virginia together with his girlfriend, Elizabeth Haysom, a Canadian national. Both were arrested for cheque fraud in England in April 1986 after having disappeared from Virginia in October 1985. When interviewed in England by a police investigator from Bedford County, Virginia, the applicant admitted to stabbing and killing Miss Haysom’s parents in Bedford County in March 1985 after the parents told him they would do anything to prevent his and Miss Haysom’s relationship. The applicant was 18 years old at the time of the homicides.

The applicant was later indicted in abstentia by the Bedford County Circuit Court on charges alleging capital murder of the Haysoms. On 11 August 1986 the US requested the applicant’s and Miss Haysom’s extradition under the Extradition Treaty of 1972 between the US and the UK. . On 29 October 1986 the British Embassy sent a request to the US seeking assurance that in the event of the applicant being surrendered and convicted for the crimes, the death penalty would not be imposed or carried out.

 In light of the applicant’s nationality the German Government also requested his extradition under the Extradition Treaty of 1872 between Germany and the UK. Whilst admissions by the applicant to a German prosecutor had been made the UK informed Germany that it had concluded that the case should continue in the US and it had obtained assurances by the Attorney for Bedford County that a representation would be made that it was the wish of the UK to not impose or carry out the death penalty, and the Federal Government of the United States sought assurances from Virginia that this would be honoured. However, during the course of the proceedings the Virginia authorities informed the UK that the Attorney for Bedford County did intend to seek the death penalty.

On 16 June 1987 committal proceedings took place before the Chief Stipendiary Magistrate of the Bow Street Magistrates’ Court. The Magistrate found evidence in a psychiatrist report that the applicant was suffering from an abnormality of the mind at the time of the homicides irrelevant to any issue he had to decide and committed the applicant to await the Secretary of State’s order for extradition to the US. The applicant was denied a writ of habeas corpus in respect of his committal by a Divisional Court and refused leave for judicial review and leave for appeal by the House of Lords. He claimed that the assurances from the US were so worthless that no reasonable Secretary of State could regard them as satisfactory under Article IV of the Extradition Treaty. Interim measures were given by the Commission and then the Court, preventing the applicant’s extradition.

 

Decision & Reasoning: 

The Court examined the UK Extradition Acts. A court would have jurisdiction to quash a challenged decision to send a fugitive to a country where it was established that there was a serious risk of inhuman or degrading treatment. While it was the Secretary of State’s practice to accept an assurance from the prosecuting authorities of the relevant American State that it was the wish of the UK that the death penalty not be imposed or carried out, the Court noted that there has never been a case in which the effectiveness of such a written undertaking has been tested.

The Court examined the relevant domestic criminal law in Virginia. It also examined the prison conditions in Mecklenburg Correctional Centre.

The Court examined relevant German law and practice. It noted that where a death sentence could be carried out, the German Government will only grant extradition if there is an unequivocal assurance by the requesting State that the death penalty will not be imposed or carried out.

The Court then turned to the alleged breaches of the ECHR, as claimed by the applicant and denied by the UK.

1. Alleged Breach of Article 3

The alleged breach of the prohibition on torture or inhuman or degrading treatment or punishment was derived from the applicant’s exposure to the so-called “death row phenomenon” which may be described as the combination of circumstances which the applicant would be exposed to if, after having been extradited to Virginia, he were sentenced to death. The Court first explained that the Convention does not contain a right prohibiting extradition  (see Article 5 § 1 (f)). However, if extradition has consequences adversely affecting the enjoyment of a Convention right, it may, assuming they are not too remote, attract the obligations of a Contracting State. That the UK has no power over Virginia authorities did not absolve it from responsibility under Art. 3 for all and any foreseeable consequences of extradition. Further, Art. 3 has no provision for exceptions or derogations. It would be incompatible with the underlying values of the Convention if a Contracting State could knowingly surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture or face a real risk of exposure to inhuman or degrading treatment or punishment in the receiving State. Therefore a decision by a Contracting State to extradite may give rise to an issue under Art. 3.

Upon application to the current case, the Court determined that the likelihood of the feared exposure to the “death row phenomenon” was sufficient to bring Art.3 into play.

The Court explained that, as established in its case law, ill-treatment and punishment must attain a minimum level of severity to fall within the scope of Art. 3. In order for a punishment or treatment to be “inhuman” or “degrading,” the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate punishment.  While capital punishment is permitted under certain conditions by Art. 2 § 1 ECHR, the Court noted that it must interpret the Convention in light of present-day conditions, in which, de facto, the death penalty no longer exists in time of peace in the Contracting States, and as is reflected in Protocol No. 6. With these marked changes, the death penalty has per se been brought within the prohibition of ill-treatment under Art. 3. However, because the Convention is to be read as a whole and its provisions in harmony with each other, Art. 3 cannot be interpreted as generally prohibiting the death penalty. Still, the circumstances relating to a death sentence can give rise to an Art. 3 issue.

The Court then examined the particular circumstances in the case and determined that a condemned prisoner has to endure many years of anguish and mounting tension of living because of the complex post-sentence procedures in Virginia. Second, the conditions in the severe special regime on death row also factor into an Art. 3 issue. Third, the applicant’s youth at the time of the offense and his then mental state tend to bring the treatment within the terms of Art. 3. Lastly was the possibility of his extradition to Germany, removing both the danger of a fugitive criminal going unpunished and the risk of intense suffering on death row.

In conclusion, the Court determined that the Secretary of State’s decision to extradite the applicant to the US would, if implemented, give rise to a breach of Art. 3.

2. Alleged breach of Article 6

The Court next considered the applicant’s submission that because of the absence of legal aid in Virginia to fund collateral challenges before Federal courts, he would not be able to secure his legal representation as required by Article 6 § 3 (c). The Court found that the facts of the present case did not disclose a risk of suffering a flagrant denial of a fair trial.

The Court then considered the applicant’s allegation that the refusal of the English Magistrates court to consider evidence as to his psychiatric condition violated Art. 6 (1) and (3), but because this complaint was not pleaded before the Commission, the Court had no jurisdiction to entertain the matter.

3. Alleged breach of Article 13

The Court lastly considered the applicant’s allegation of a breach of Art. 13 ECHR because he claimed he had no effective remedy in the UK in respect of his complaint under Art. 3. The Court came to the conclusion that the requirements of Art. 13 were not violated. In coming to this conclusion, the Court first examined the judicial review proceedings. It was satisfied that the English courts can review the “reasonableness” of an extradition decision (the test of “irrationality” on the basis of the so-called “Wednesbury principles”) in light of the kind of factors relied on by the applicant before the Convention institutions in the context of Art. 3. The applicant’s claim failed before the House of Lords because it was premature. Furthermore, his arguments were not the same as those relied on when justifying his complaint under Art. 3. The English courts’ lack of jurisdiction to grant interim injunctions against the Crown did not detract from the effectiveness of judicial review, and as such, the Court concluded that the applicant did have an effective remedy available to him under English law.

4. Application of Article 50

The Court found that its finding regarding Art. 3 itself amounts to adequate just satisfaction for the purposes of Art. 50. The Court did find that in equity the applicant should recover his costs and expenses in full, as he was successful on the bulk of the argument, focused on the complaint under Art. 3. 

Outcome: 

Application granted.

Observations/Comments: 

This case expanded a Contracting State’s responsibility so that it could be liable for a breach of the Convention for foreseeable consequences or risk that an individual would face in a third State, even if the potential breach (here, ill treatment or punishment) was outside of its control and it had general assurances that no breach would occur.

This rationale would later be found to apply equally to deportation cases, where other articles of the Convention, such as Article 6, may apply. (See ECtHR - Othman (Abu Qatada) v. The United Kingdom, Appl. No. 8139/09, 17 January 2012.)

Case Law Cited: 

ECtHR - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81

ECtHR - Artico v. Italy, Application No. 6694/74

ECtHR - Boyle and Rice v. the United Kingdom, Application Nos. 9659/82 and 9658/82

Kjeldsen, Busk Madsen and Pedersen v. Denmark, Application Nos. 5095/71, 5920/72 and 5926/72

ECtHR - Tyrer v UK (Application no. 5856/72)

ECtHR - Dudgeon v United Kingdom, 22 October 1981, Series A no. 45

ECtHR - Silver v UK, Application No. 5947/72

ECtHR- Ireland v. United Kingdom, Application no. 5310/71

ECtHR - Schiesser v. Switzerland, Appl. No. 7710/76, 4 December 1979

Le Compte, ECtHR - Van Leuven and De Meyere, Appl. Nos. 6878/75, 7238/75, 18 October 1982

ECtHR - Klass and Others v. Germany, Appl. No. 5029/71, 6 September 1978

ECtHR - Swedish Engine Drivers' Union, Appl. No. 5614/72, 6 February 1976

ECtHR - Johnston and others v. Ireland

ECtHR - Colozza judgment of 12 February 1985, Series A no. 89, p. 16, para. 32
Other sources cited: 

Extradition Treaty of 1972 between the United Kingdom and the United States of America, completed by a Supplementary Treaty of 1982 amended by an exchange of notes dated 1986

Treaty of 14 May 1872 between the United Kingdom and Germany for the Mutual Surrender of Fugitive Criminals, as reapplied with amendments by an Agreement in 1960 and further amended by an Exchange of Notes in 1978

European Convention on Extradition (Article 11) (1957)

American Convention on Human Rights (1969)

 

Authentic Language: 
English
State Party: 
United Kingdom
National / Other Legislative Provisions: 
UK - Extradition Acts 1870-1935
Germany - Basic Law of the Federal Republic of Germany
German - Criminal Code
Germany - Juvenile Court Act (1953)
US - Code of Virginia of 1950
as amended