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

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.