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You are here: BAILII >> Databases >> European Court of Human Rights >> Soering v United Kingdom - 14038/88 [1989] ECHR 14 (7 July 1989) URL: http://www.bailii.org/eu/cases/ECHR/1989/14.html Cite as: CE:ECHR:1989:0707JUD001403888, ECLI:CE:ECHR:1989:0707JUD001403888, [1989] 11 EHRR 439, [1989] ECHR 14038/88, (1989) 11 EHRR 439, [1989] ECHR 14, 11 EHRR 439 |
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COURT (PLENARY)
CASE OF SOERING
v. THE UNITED KINGDOM
(Application no. 14038/88)
JUDGMENT
STRASBOURG
07 July 1989
The European Court of Human Rights, taking its decision in plenary session in pursuance of Rule 50 of the Rules of Court and composed of the following judges:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr B. Walsh,
Sir Vincent Evans,
Mr R. Macdonald,
Mr C. Russo,
Mr R. Bernhardt,
Mr A. Spielmann,
Mr J. De Meyer,
Mr J.A. Carrillo Salcedo,
Mr N. Valticos,
Mr S.K. Martens,
Mrs E. Palm,
Mr I. Foighel,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,
Having deliberated in private on 27 April and 26 June 1989,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case was brought before the Court on 25 January 1989
by the European Commission of Human Rights ("the Commission"), on 30
January 1989 by the Government of the United Kingdom of Great Britain and
Northern Ireland and on 3 February 1989 by the Government of the Federal
Republic of Germany, within the three-month period laid down by Article 32 § 1
and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention"). It
originated in an application (no. 14038/88) against the United Kingdom lodged with the Commission under Article 25 (art. 25) by a German national,
Mr Jens Soering
, on 8 July 1988.
The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request and of the two governmental applications was to obtain a decision from the Court 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 (art. 3, art. 6, art. 13) of the Convention.
On the same day the Chamber relinquished jurisdiction forthwith in favour of the plenary Court (Rule 50).
- on 28 March 1989, the memorial of the United Kingdom Government and the memorial of the applicant;
- on 31 March 1989, the memorial of the German Government;
- on 17 April 1989, the counter-memorial of the applicant;
- on 18 April 1989, further affidavits submitted by the United Kingdom Government;
- on 20 April 1989, further evidence submitted by the applicant.
On 7 April 1989 the Secretary to the Commission had informed the Registrar that the Delegate did not propose to reply in writing to the memorials.
There appeared before the Court:
- for the Government of the United Kingdom
Mr M. Wood, Legal Counsellor,
Foreign and Commonwealth Office, Agent,
Sir Patrick Mayhew, Q.C., M.P., Attorney General,
Mr M. Baker, Barrister-at-Law, Counsel,
Miss E. Wilmshurst, Legal Secretariat
to the Law Officers,
Mr D. Bentley, Home Office,
Mr T. Cobley, Home Office, Advisers;
- for the Government of the Federal Republic of Germany
Mr J. Meyer-Ladewig, Ministerialdirigent,
Federal Ministry of Justice, Agent,
Mr M. Grotz, Regierungsdirektor,
Federal Ministry of Justice,
Mrs S. Werner, Richterin am Amtsgericht,
Federal Ministry of Justice, Advisers;
- for the Commission
Mr E. Busuttil, Delegate;
- for the applicant
Mr Colin Nicholls, Q.C., Counsel,
Mr R. Spencer, Solicitor,
Mr F. Gardner, Solicitor, Advisers.
The Court heard addresses by Sir Patrick Mayhew for the United Kingdom Government, by Mr Meyer-Ladewig for the German Government, by Mr Busuttil for the Commission and by Mr Nicholls for the applicant.
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
11. The applicant, Mr Jens Soering
, was born on 1 August 1966 and is a German national. He is currently detained in prison in England pending extradition to the United States of America to face charges of murder in
the Commonwealth of Virginia.
On 13 June 1986 a grand jury of the Circuit Court of Bedford County indicted him on charges of murdering the Haysom parents. The charges alleged capital murder of both of them and the separate non-capital murders of each.
"Because the death penalty has been abolished in Great
Britain, the Embassy has been instructed to seek an assurance, in accordance
with the terms of ... the Extradition Treaty, that, in the event of Mr Soering
being surrendered and being convicted of the crimes for which he has been
indicted ..., the death penalty, if imposed, will not be carried out.
Should it not be possible on constitutional grounds for the United States Government to give such an assurance, the United Kingdom authorities ask that the United States Government undertake to recommend to the appropriate authorities that the death penalty should not be imposed or, if imposed, should not be executed."
On 11 February 1987 the local court in Bonn issued a warrant for the applicant’s arrest in respect of the alleged murders. On 11 March the Government of the Federal Republic of Germany requested his extradition to the Federal Republic under the Extradition Treaty of 1872 between the Federal Republic and the United Kingdom (see paragraph 31 below). The Secretary of State was then advised by the Director of Public Prosecutions that, although the German request contained proof that German courts had jurisdiction to try the applicant, the evidence submitted, since it consisted solely of the admissions made by the applicant to the Bonn prosecutor in the absence of a caution, did not amount to a prima facie case against him and that a magistrate would not be able under the Extradition Act 1870 (see paragraph 32 below) to commit him to await extradition to Germany on the strength of admissions obtained in such circumstances.
19. On 20 May 1987 the United Kingdom Government informed the
Federal Republic of Germany that the United States had earlier "submitted
a request, supported by prima facie evidence, for the extradition of Mr
Soering
". The United Kingdom Government notified the Federal Republic that they had "concluded that, having regard to all the circumstances of the
case, the court should continue to consider in the normal way the United States request". They further indicated that they had sought an assurance from
the United States authorities on the question of the death penalty and that
"in the event that the court commits Mr
Soering
, his surrender to the United States authorities would be subject to the receipt of satisfactory assurances on
this matter".
"I hereby certify that should Jens Soering
be convicted of
the offence of capital murder as charged in Bedford County, Virginia ... a representation
will be made in the name of the United Kingdom to the judge at the time of
sentencing that it is the wish of the United Kingdom that the death penalty
should not be imposed or carried out."
This assurance was transmitted to the United Kingdom Government under cover of a diplomatic note on 8 June. It was repeated in the same terms in a further affidavit from Mr Updike sworn on 16 February 1988 and forwarded to the United Kingdom by diplomatic note on 17 May 1988. In the same note the Federal Government of the United States undertook to ensure that the commitment of the appropriate authorities of the Commonwealth of Virginia to make representations on behalf of the United Kingdom would be honoured.
During the course of the present proceedings the Virginia authorities informed the United Kingdom Government that Mr Updike was not planning
to provide any further assurances and intended to seek the death penalty in Mr
Soering
’s case because the evidence, in his determination, supported such
action.
The Government of the United States adduced evidence that on the night of 30 March 1985 the applicant killed William and Nancy Haysom at their home in Bedford County, Virginia. In particular, evidence was given of the applicant’s own admissions as recorded in the affidavit of the Bedford County police investigator (see paragraph 13 above).
On behalf of the applicant psychiatric evidence was adduced from a consultant forensic psychiatrist (report dated 15 December 1986 by Dr Henrietta Bullard) that he was immature and inexperienced and had lost his personal identity in a symbiotic relationship with his girlfriend - a powerful, persuasive and disturbed young woman. The psychiatric report concluded:
"There existed between Miss Haysom and Soering
a ‘folie à
deux’, in which the most disturbed partner was Miss Haysom. ...
At the time of the offence, it is my opinion that Jens Soering
was suffering from [such] an abnormality of mind due to inherent causes as
substantially impaired his mental responsibility for his acts. The psychiatric
syndrome referred to as ‘folie à deux’ is a well-recognised state of mind where
one partner is suggestible to the extent that he or she believes in the
psychotic delusions of the other. The degree of disturbance of Miss Haysom
borders on the psychotic and, over the course of many months, she was able to
persuade
Soering
that he might have to kill her parents for she and him to
survive as a couple. ... Miss Haysom had a stupefying and mesmeric effect on
Soering
which led to an abnormal psychological state in which he became unable
to think rationally or question the absurdities in Miss Haysom’s view of her
life and the influence of her parents. ...
In conclusion, it is my opinion that, at the time of the
offences, Soering
was suffering from an abnormality of mind which, in this
country, would constitute a defence of ‘not guilty to murder but guilty of
manslaughter’."
Dr Bullard’s conclusions were substantially the same as those contained in an earlier psychiatric report (dated 11 December 1986 by Dr John R. Hamilton, Medical Director of Broadmoor Hospital), which was not however put before the Magistrates’ Court.
The Chief Magistrate found that the evidence of Dr Bullard was not relevant to any issue that he had to decide and committed the applicant to await the Secretary of State’s order for his return to the United States.
22. On 29 June 1987 Mr Soering
applied to the Divisional Court for a writ of habeas corpus in respect of his committal and for leave to
apply for judicial review. On 11 December both applications were refused by the
Divisional Court (Lord Justice Lloyd and Mr Justice Macpherson).
In support of his application for leave to apply for judicial
review, Mr Soering
had submitted that the assurance received from the United States authorities was so worthless that no reasonable Secretary of State could
regard it as satisfactory under Article IV of the Extradition Treaty between
the United Kingdom and the United States (see paragraph 36 below). In his
judgment Lord Justice Lloyd agreed that "the assurance leaves something to
be desired":
"Article IV of the Treaty contemplates an assurance that the death penalty will not be carried out. That must presumably mean an assurance by or on behalf of the Executive Branch of Government, which in this case would be the Governor of the Commonwealth of Virginia. The certificate sworn by Mr Updike, far from being an assurance on behalf of the Executive, is nothing more than an undertaking to make representations on behalf of the United Kingdom to the judge. I cannot believe that this is what was intended when the Treaty was signed. But I can understand that there may well be difficulties in obtaining more by way of assurance in view of the federal nature of the United States Constitution."
Leave to apply for judicial review was refused because the claim was premature. Lord Justice Lloyd stated:
"The Secretary of State has not yet decided whether to
accept the assurance as satisfactory and he has certainly not yet decided
whether or not to issue a warrant for Soering
’s surrender. Other factors may
well intervene between now and then. This court will never allow itself to be
put in the position of reviewing an administrative decision before the decision
has been made."
As a supplementary reason, he added:
"Secondly, even if a decision to regard the assurance as satisfactory had already been made by the Secretary of State, then on the evidence currently before us I am far from being persuaded that such a decision would have been irrational in the Wednesbury sense." (As to "irrationality" in the Wednesbury sense, see paragraph 35 below.)
This request was rejected, and on 3 August 1988 the Secretary of State signed a warrant ordering the applicant’s surrender to the United States authorities. However, the applicant has not been transferred to the United States by virtue of the interim measures indicated in the present proceedings firstly by the European Commission and then by the European Court (see paragraphs 4 above and 77 below).
According to psychiatric evidence adduced on behalf of the applicant (report dated 16 March 1989 by Dr D. Somekh), the applicant’s dread of extreme physical violence and homosexual abuse from other inmates in death row in Virginia is in particular having a profound psychological effect on him. The psychiatrist’s report records a mounting desperation in the applicant, together with objective fears that he may seek to take his own life.
II. RELEVANT DOMESTIC LAW AND PRACTICE IN THE UNITED KINGDOM
A. Criminal law
B. Extradition
29. The relevant general law on extradition is contained in the Extradition Acts 1870-1935.
By virtue of Article I of the Extradition Treaty, "each Contracting Party undertakes to extradite to the other, in the circumstances and subject to the conditions specified in this Treaty, any person found in its territory who has been accused or convicted of any offence [specified in the Treaty and including murder], committed within the jurisdiction of the other Party".
Extradition proceedings in the United Kingdom consist in an extradition hearing before a magistrate. Section 10 of the Extradition Act 1870 provides that if "such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England ... the ... magistrate shall commit him to prison but otherwise he shall order him to be discharged". A magistrate must be satisfied that there is sufficient evidence to put the accused on trial; before committing him a prima facie case must be made out against him. "The test is whether, if the evidence before the magistrate stood alone at the trial, a reasonable jury properly directed could accept it and find a verdict of guilty" (Schtraks v. Government of Israel [1964] Appeal Cases 556).
Irrationality is determined on the basis of the administrative-law principles set out in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 King’s Bench Reports 223 (the so-called "Wednesbury principles" of reasonableness). The test in an extradition case would be that no reasonable Secretary of State could have made an order for return in the circumstances. As the judgment of Lord Justice Lloyd in the Divisional Court in the present case shows (see paragraph 22 above), the reliance placed by the Secretary of State on any assurance given by the requesting State may be tested to determine whether such reliance is within the confines of "reasonableness". According to the United Kingdom Government, on the same principle 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, on the ground that in all the circumstances of the case the decision was one which no reasonable Secretary of State could take.
In R v. Home Secretary, ex parte Bugdaycay [1987] 1 All England Law Reports 940 at 952, a House of Lords case concerning a refusal to grant asylum, Lord Bridge, while acknowledging the limitations of the Wednesbury principles, explained that the courts will apply them extremely strictly against the Secretary of State in a case in which the life of the applicant is at risk:
"Within those limitations the court must, I think, be entitled to subject an administrative decision to the most rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual’s right to life and, when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny."
Lord Templeman added (at page 956):
"In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision-making process."
However, the courts will not review any decision of the Secretary of State by reason of the fact only that he failed to consider whether or not there was a breach of the European Convention on Human Rights (R v. Secretary of State, ex parte Kirkwood [1984] 1 Weekly Law Reports 913).
In addition, the courts have no jurisdiction to issue interim injunctions against the Crown in judicial review proceedings (Kirkwood, ibid., and R v. Secretary of State for Transport, ex parte Factortame Ltd and Others, The Times, 19 May 1989).
"If the offence for which extradition is requested is punishable by death under the relevant law of the requesting Party, but the relevant law of the requested Party does not provide for the death penalty in a similar case, extradition may be refused unless the requesting Party gives assurances satisfactory to the requested Party that the death penalty will not be carried out."
"The written undertakings about the death penalty that the Secretary of State obtains from the Federal authorities amount to an undertaking that the views of the United Kingdom will be represented to the judge. At the time of sentencing he will be informed that the United Kingdom does not wish the death penalty to be imposed or carried out. That means that the United Kingdom authorities render up a fugitive or are prepared to send a citizen to face an American court on the clear understanding that the death penalty will not be carried out - it has never been carried out in such cases. It would be a fundamental blow to the extradition arrangements between our two countries if the death penalty were carried out on an individual who had been returned under those circumstances." (Hansard, 10 March 1987, col. 955)
There has, however, never been a case in which the effectiveness of such an undertaking has been tested.
In this respect Article X of the Extradition Treaty between the United Kingdom and the United States provides as follows:
"If the extradition of a person is requested concurrently by one of the Contracting Parties and by another State or States, either for the same offence or for different offences, the requested Party shall make its decision, in so far as its law allows, having regard to all the circumstances, including the provisions in this regard in any Agreements in force between the requested Party and the requesting States, the relative seriousness and place of commission of the offences, the respective dates of the requests, the nationality of the person sought and the possibility of subsequent extradition to another State."
III. RELEVANT DOMESTIC LAW IN THE COMMONWEALTH OF VIRGINIA
A. The law relating to murder
Murder other than capital murder is classified as murder in the first degree or murder in the second degree and is punishable by varying terms of imprisonment (Virginia Code, sections 18.2-10(b), (c) and 18.2-32).
B. Sentencing procedure
"Future dangerousness" exists where there is a probability that the defendant would commit "criminal acts of violence" in the future such as would constitute a "continuing serious threat to society" (Virginia Code, section 19.2-264.2).
"Vileness" exists when the crime was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim" (Virginia Code, ibid.). The words "depravity of mind" mean "a degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation". The words "aggravated battery" mean a battery which, "qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder" (Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), certiorari denied, 441 United States Supreme Court Reports (U.S.) 967 (1979)). Proof of multiple wounds sustained by the victim, particularly a neck wound, which even considered alone, constituted an aggravated battery in the light of the savage, methodical manner in which it was inflicted, leaving the victim to suffer an interval of agony awaiting death, has been held to satisfy the test of "vileness" under this section (Edmonds v. Commonwealth, 229 Va. 303, 329 S.E.2d 807, certiorari denied, 106 Supreme Court Reporter (S.Ct.) 339, 88 United States Supreme Court Reports, Lawyers’ Edition, Second Series (L.Ed.2d) 324 (1985)).
"(i) the defendant has no significant history of prior criminal activity, or (ii) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance, or (iii) the victim was a participant in the defendant’s conduct or consented to the act, or (iv) at the time of the commission of the capital felony, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was significantly impaired, or (v) the age of the defendant at the time of the commission of the capital offence" (Virginia Code, section 19.2-264.4B).
The Virginia death penalty statutory scheme, including the provision on mandatory review of sentence (see paragraph 52 below), has been judicially determined to be constitutional. It was considered to prevent the arbitrary or capricious imposition of the death penalty and narrowly to channel the sentencer’s discretion (Smith v. Commonwealth, loc. cit.; Turnver v. Bass, 753 Federal Reporter, Second Series (F.2d) 342 (4th Circuit, 1985); Briley v. Bass, 750 F.2d 1238 (4th Circuit, 1984)). The death penalty under the Virginia capital murder statute has also been held not to constitute cruel and unusual punishment or to deny a defendant due process or equal protection (Stamper v. Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979), certiorari denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980)). The Supreme Court of Virginia rejected the submission that death by electrocution would cause "the needless imposition of pain before death and emotional suffering while awaiting execution of sentence" (ibid.).
C. Insanity, mental disorders and diminished responsibility
Additionally, indigent capital murder defendants are entitled by statute to the appointment of a qualified mental health expert to assist in the preparation and presentation of information concerning their history, character and mental condition with a view to establishing factors in mitigation (Virginia Code, section 19.2-264.3:1).
Upon presentation of evidence of the defendant’s mental state, the sentencer may elect to impose life imprisonment rather than the death penalty.
D. Appeals in capital cases
This automatic direct appeal is governed by the Rules of the Supreme Court of Virginia and encompasses various time-limits for the filing of briefs. In addition, precedence is given to the review of sentences of death before any other case (Rule 5.23; see also Virginia Code, section 17-110.2). Normally the time taken by this appeal does not exceed six months.
After this appeal process is completed, the sentence of death will be executed unless a stay of execution is entered. As a practical matter, a stay will be entered when the prisoner initiates further proceedings.
There has apparently been only one case since 1977 where the Virginia Supreme Court has itself reduced a death sentence to life imprisonment.
The prisoner may file a habeas corpus petition either in the Supreme Court of Virginia or in the trial court, with appeal to the Supreme Court of Virginia. Thereafter he may once more apply to the United States Supreme Court for certiorari review of the State’s habeas corpus decision.
He may then file a petition for a writ of habeas corpus in the Federal District Court. The decision of the District Court may be appealed to the Federal Circuit Court of Appeals, followed, if no relief is obtained, by a petition for certiorari review in the United States Supreme Court.
At each stage of his collateral attacks, the prisoner may seek a stay of execution pending final determination of his applications.
By way of exception to the rule, errors to which no objections were made at the trial may be objected to on appeal where this is necessary to attain the ends of justice or where good cause is shown. This exception has been applied by the Supreme Court of Virginia to overturn a capital murder conviction (Ball v. Commonwealth, 221 Va. 754, 273 S.E.2d 790 (1981)). In death penalty cases, the proportionality of the sentence and the issue of whether the sentence was imposed under the influence of passion, prejudice or other arbitrary factor (see paragraph 52 above) is reviewed without regard to whether objection was made at trial (see Briley v. Bass, loc. cit.).
E. Legal assistance for appeals
Virginia inmates also have access to legal information and assistance in the form of law libraries and institutional attorneys. The institutional attorneys are available to assist inmates in "any legal matter relating to their incarceration" (Virginia Code, section 53.1-40), including the drafting of habeas corpus petitions and motions for appointment of counsel for the inmates to file.
A prisoner is not obliged to proceed with counsel, and he may litigate in both State and Federal courts pro se. However, no Virginia prisoner under sentence of death in contemporary times has ever been unrepresented during his trial, appeal or habeas corpus proceedings. Nor has any such prisoner faced execution without counsel.
F. Authorities involved in the death penalty procedure
G. Prison conditions in Mecklenburg Correctional Center
When not in their cells, death row inmates are housed in a common area called "the pod". The guards are not within this area and remain in a box outside. In the event of disturbance or inter-inmate assault, the guards are not allowed to intervene until instructed to do so by the ranking officer present.
Lockdowns may also be ordered from time to time in relation to death row if information is received indicating that certain of its inmates may be planning a disturbance, hostage situation or escape.
H. The giving and effect of assurances in relation to the death penalty
According to evidence from the Virginia authorities, Virginia’s capital sentencing procedure and notably the provision on post-sentencing reports (see paragraph 47 above) would allow the sentencing judge to consider the representation to be made on behalf of the United Kingdom Government pursuant to the assurance given by the Attorney for Bedford County (see paragraph 20 above). In addition, it would be open to the Governor to take into account the wishes of the United Kingdom Government in any application for clemency (see paragraph 60 above).
I. Mutual assistance in criminal matters
IV. RELEVANT LAW AND PRACTICE OF THE FEDERAL REPUBLIC OF GERMANY
72. Murder is defined as follows in section 211(2) of the Criminal Code:
"He is deemed a murderer who because of murderous lust, to satisfy his sexual instinct, for reasons of covetousness or for otherwise base motives, insidiously or cruelly or by means constituting a public danger or in order to render another crime possible or to conceal another crime kills a person."
Murder is punishable with life imprisonment (Criminal Code, section 211(1)), the death penalty having been abolished under the Constitution (Article 102 of the Basic Law, 1949).
Where, on the other hand, the young adult offender’s personal development corresponds to his age, the general criminal law applies but the judge may pass a sentence of 10 to 15 years’ imprisonment instead of a life sentence (section 106(1)).
In a case of diminished responsibility, namely where there is substantial impairment of the offender’s ability to appreciate the wrongfulness of the offence or to act in accordance with such appreciation at the time of commission of the offence for one of the reasons set out in section 20 (Criminal Code, section 21), punishment may be reduced and, in particular, in homicide cases imprisonment of not less than 3 years shall be substituted for life imprisonment (Criminal Code, section 49(1)(2)). Alternatively, the court may order placement in a psychiatric hospital.
PROCEEDINGS BEFORE THE COMMISSION
76. Mr Soering
’s application (no. 14038/88) was lodged with
the Commission on 8 July 1988. In his application Mr
Soering
stated his belief
that, notwithstanding the assurance given to the United Kingdom Government,
there was a serious likelihood that he would be sentenced to death if
extradited to the United States of America. He maintained that in the
circumstances and, in particular, having regard to the "death row
phenomenon" he would thereby be subjected to inhuman and degrading
treatment and punishment contrary to Article 3 (art. 3) of the Convention. In
his further submission his extradition to the United States would constitute a
violation of Article 6 § 3 (c) (art. 6-3-c) because of the absence of legal aid
in the State of Virginia to pursue various appeals. Finally, he claimed that,
in breach of Article 13 (art. 13), he had no effective remedy under United Kingdom law in respect of his complaint under Article 3 (art. 3).
78. The Commission declared the application admissible on 10 November 1988.
In its report adopted on 19 January 1989 (Article 31) (art. 31) the Commission expressed the opinion that there had been a breach of Article 13 (art. 13) (seven votes to four) but no breach of either Article 3 (art. 3) (six votes to five) or Article 6 § 3 (c) (art. 6-3-c) (unanimously).
The full text of the Commission’s opinion and of the separate opinions contained in the report is reproduced as an annex to this judgment*.
FINAL SUBMISSIONS TO THE COURT BY THE UNITED KINGDOM GOVERNMENT
"1. that neither the extradition of the applicant nor any act or decision of the United Kingdom Government in relation thereto constitutes a breach of Article 3 (art. 3) of the Convention;
2. that neither the extradition of the applicant nor any act or decision of the United Kingdom Government in relation thereto constitutes a breach of Article 6 § 3 (c) (art. 6-3-c) of the Convention;
3. that there has been no violation of Article 13 (art. 13) of the Convention;
4. that no issues arise under Article 50 (art. 50) of the Convention which call for consideration by the Court".
They also submitted that further complaints under Article 6 (art. 6) made by the applicant before the Court were not within the scope of the case as declared admissible by the Commission.
AS TO THE LAW
I. ALLEGED BREACH OF ARTICLE 3 (art. 3)
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
A. Applicability of Article 3 (art. 3) in cases of extradition
The Government of the Federal Republic of Germany supported the approach of the Commission, pointing to a similar approach in the case-law of the German courts.
The applicant likewise submitted that Article 3 (art. 3) not only prohibits the Contracting States from causing inhuman or degrading treatment or punishment to occur within their jurisdiction but also embodies an associated obligation not to put a person in a position where he will or may suffer such treatment or punishment at the hands of other States. For the applicant, at least as far as Article 3 (art. 3) is concerned, an individual may not be surrendered out of the protective zone of the Convention without the certainty that the safeguards which he would enjoy are as effective as the Convention standard.
In the alternative, the United Kingdom Government submitted that the application of Article 3 (art. 3) in extradition cases should be limited to those occasions in which the treatment or punishment abroad is certain, imminent and serious. In their view, the fact that by definition the matters complained of are only anticipated, together with the common and legitimate interest of all States in bringing fugitive criminals to justice, requires a very high degree of risk, proved beyond reasonable doubt, that ill-treatment will actually occur.
84. The Court will approach the matter on the basis of the following considerations.
In the instant case it is common ground that the United Kingdom has no power over the practices and arrangements of the Virginia authorities which are the subject of the applicant’s complaints. It is also true that in other international instruments cited by the United Kingdom Government - for example the 1951 United Nations Convention relating to the Status of Refugees (Article 33), the 1957 European Convention on Extradition (Article 11) and the 1984 United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Article 3) - the problems of removing a person to another jurisdiction where unwanted consequences may follow are addressed expressly and specifically.
These considerations cannot, however, absolve the Contracting Parties from responsibility under Article 3 (art. 3) for all and any foreseeable consequences of extradition suffered outside their jurisdiction.
The question remains whether the extradition of a fugitive to another State where he would be subjected or be likely to be subjected to torture or to inhuman or degrading treatment or punishment would itself engage the responsibility of a Contracting State under Article 3 (art. 3). That the abhorrence of torture has such implications is recognised in Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that "no State Party shall ... extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture". The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 (art. 3) of the European Convention. It would hardly be compatible with the underlying values of the Convention, that "common heritage of political traditions, ideals, freedom and the rule of law" to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3 (art. 3), would plainly be contrary to the spirit and intendment of the Article, and in the Court’s view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article (art. 3).
B. Application of Article 3 (art. 3) in the particular circumstances of the present case
92. The extradition procedure against the applicant in the
United Kingdom has been completed, the Secretary of State having signed a
warrant ordering his surrender to the United States authorities (see paragraph
24 above); this decision, albeit as yet not implemented, directly affects him. It
therefore has to be determined on the above principles whether the foreseeable
consequences of Mr Soering
’s return to the United States are such as to attract
the application of Article 3 (art. 3). This inquiry must concentrate firstly on
whether Mr
Soering
runs a real risk of being sentenced to death in Virginia,
since the source of the alleged inhuman and degrading treatment or punishment,
namely the "death row phenomenon", lies in the imposition of the
death penalty. Only in the event of an affirmative answer to this question need
the Court examine whether exposure to the "death row phenomenon" in
the circumstances of the applicant’s case would involve treatment or punishment
incompatible with Article 3 (art. 3).
1. Whether the applicant runs a real risk of a death sentence and hence of exposure to the "death row phenomenon"
Firstly, as illustrated by his interview with the German prosecutor where he appeared to deny any intention to kill (see paragraph 16 above), the applicant has not acknowledged his guilt of capital murder as such.
Secondly, only a prima facie case has so far been made out
against him. In particular, in the United Kingdom Government’s view the
psychiatric evidence (see paragraph 21 above) is equivocal as to whether Mr
Soering
was suffering from a disease of the mind sufficient to amount to a
defence of insanity under Virginia law (as to which, see paragraph 50 above).
Thirdly, even if Mr Soering
is convicted of capital murder, it
cannot be assumed that in the general exercise of their discretion the jury
will recommend, the judge will confirm and the Supreme Court of Virginia will
uphold the imposition of the death penalty (see paragraphs 42-47 and 52 above).
The United Kingdom Government referred to the presence of important mitigating
factors, such as the applicant’s age and mental condition at the time of
commission of the offence and his lack of previous criminal activity, which
would have to be taken into account by the jury and then by the judge in the
separate sentencing proceedings (see paragraphs 44-47 and 51 above).
Fourthly, the assurance received from the United States must at the very least significantly reduce the risk of a capital sentence either being imposed or carried out (see paragraphs 20, 37 and 69 above).
At the public hearing the Attorney General nevertheless made
clear his Government’s understanding that if Mr Soering
were extradited to the United States there was "some risk", which was "more than merely
negligible", that the death penalty would be imposed.
94. As the applicant himself pointed out, he has made to
American and British police officers and to two psychiatrists admissions of his
participation in the killings of the Haysom parents, although he appeared to
retract those admissions somewhat when questioned by the German prosecutor (see
paragraphs 13, 16 and 21 above). It is not for the European Court to usurp the
function of the Virginia courts by ruling that a defence of insanity would or
would not be available on the psychiatric evidence as it stands. The United
Kingdom Government are justified in their assertion that no assumption can be
made that Mr Soering
would certainly or even probably be convicted of capital
murder as charged (see paragraphs 13 in fine and 40 above). Nevertheless, as
the Attorney General conceded on their behalf at the public hearing, there is
"a significant risk" that the applicant would be so convicted.
Admittedly, taken on their own the mitigating factors do reduce
the likelihood of the death sentence being imposed. No less than four of the
five facts in mitigation expressly mentioned in the Code of Virginia could
arguably apply to Mr Soering
’s case. These are a defendant’s lack of any
previous criminal history, the fact that the offence was committed while a
defendant was under extreme mental or emotional disturbance, the fact that at
the time of commission of the offence the capacity of a defendant to appreciate
the criminality of his conduct or to conform his conduct to the requirements of
the law was significantly diminished, and a defendant’s age (see paragraph 45
above).
97. The Commonwealth’s Attorney for Bedford County, Mr
Updike, who is responsible for conducting the prosecution against the
applicant, has certified that "should Jens Soering
be convicted of the
offence of capital murder as charged ... a representation will be made in the
name of the United Kingdom to the judge at the time of sentencing that it is
the wish of the United Kingdom that the death penalty should not be imposed or
carried out" (see paragraph 20 above). The Court notes, like Lord Justice
Lloyd in the Divisional Court (see paragraph 22 above), that this undertaking
is far from reflecting the wording of Article IV of the 1972 Extradition Treaty
between the United Kingdom and the United States, which speaks of
"assurances satisfactory to the requested Party that the death penalty
will not be carried out" (see paragraph 36 above). However, the offence
charged, being a State and not a Federal offence, comes within the jurisdiction
of the Commonwealth of Virginia; it appears as a consequence that no direction
could or can be given to the Commonwealth’s Attorney by any State or Federal
authority to promise more; the Virginia courts as judicial bodies cannot bind
themselves in advance as to what decisions they may arrive at on the evidence;
and the Governor of Virginia does not, as a matter of policy, promise that he
will later exercise his executive power to commute a death penalty (see
paragraphs 58-60 above).
This being so, Mr Updike’s undertaking may well have been the best "assurance" that the United Kingdom could have obtained from the United States Federal Government in the particular circumstances. According to the statement made to Parliament in 1987 by a Home Office Minister, acceptance of undertakings in such terms "means that the United Kingdom authorities render up a fugitive or are prepared to send a citizen to face an American court on the clear understanding that the death penalty will not be carried out ... It would be a fundamental blow to the extradition arrangements between our two countries if the death penalty were carried out on an individual who had been returned under those circumstances" (see paragraph 37 above). Nonetheless, the effectiveness of such an undertaking has not yet been put to the test.
Whatever the position under Virginia law and practice (as to which, see paragraphs 42, 46, 47 and 69 above), and notwithstanding the diplomatic context of the extradition relations between the United Kingdom and the United States, objectively it cannot be said that the undertaking to inform the judge at the sentencing stage of the wishes of the United Kingdom eliminates the risk of the death penalty being imposed. In the independent exercise of his discretion the Commonwealth’s Attorney has himself decided to seek and to persist in seeking the death penalty because the evidence, in his determination, supports such action (see paragraph 20 in fine above). If the national authority with responsibility for prosecuting the offence takes such a firm stance, it is hardly open to the Court to hold that there are no substantial grounds for believing that the applicant faces a real risk of being sentenced to death and hence experiencing the "death row phenomenon".
2. Whether in the circumstances the risk of exposure to the "death row phenomenon" would make extradition a breach of Article 3 (art. 3)
(a) General considerations
Treatment has been held by the Court to be both "inhuman" because it was premeditated, was applied for hours at a stretch and "caused, if not actual bodily injury, at least intense physical and mental suffering", and also "degrading" because it was "such as to arouse in [its] victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance" (see the above-mentioned Ireland v. the United Kingdom judgment, p. 66, § 167). In order for a punishment or treatment associated with it 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 (see the Tyrer judgment, loc. cit.). In this connection, account is to be taken not only of the physical pain experienced but also, where there is a considerable delay before execution of the punishment, of the sentenced person’s mental anguish of anticipating the violence he is to have inflicted on him.
"Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."
In view of this wording, the applicant did not suggest that the death penalty per se violated Article 3 (art. 3). He, like the two Government Parties, agreed with the Commission that the extradition of a person to a country where he risks the death penalty does not in itself raise an issue under either Article 2 (art. 2) or Article 3 (art. 3). On the other hand, Amnesty International in their written comments (see paragraph 8 above) argued that the evolving standards in Western Europe regarding the existence and use of the death penalty required that the death penalty should now be considered as an inhuman and degrading punishment within the meaning of Article 3 (art. 3).
Whether these marked changes have the effect of bringing the death penalty per se within the prohibition of ill-treatment under Article 3 (art. 3) must be determined on the principles governing the interpretation of the Convention.
Subsequent practice in national penal policy, in the form of a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under Article 2 § 1 (art. 2-1) and hence to remove a textual limit on the scope for evolutive interpretation of Article 3 (art. 3). However, Protocol No. 6 (P6), as a subsequent written agreement, shows that the intention of the Contracting Parties as recently as 1983 was to adopt the normal method of amendment of the text in order to introduce a new obligation to abolish capital punishment in time of peace and, what is more, to do so by an optional instrument allowing each State to choose the moment when to undertake such an engagement. In these conditions, notwithstanding the special character of the Convention (see paragraph 87 above), Article 3 (art. 3) cannot be interpreted as generally prohibiting the death penalty.
(b) The particular circumstances
The Government of the Federal Republic of Germany took the view that, taking all the circumstances together, the treatment awaiting the applicant in Virginia would go so far beyond treatment inevitably connected with the imposition and execution of a death penalty as to be "inhuman" within the meaning of Article 3 (art. 3).
On the other hand, the conclusion expressed by the Commission was that the degree of severity contemplated by Article 3 (art. 3) would not be attained.
The United Kingdom Government shared this opinion. In particular, they disputed many of the applicant’s factual allegations as to the conditions on death row in Mecklenburg and his expected fate there.
i. Length of detention prior to execution
Nevertheless, just as some lapse of time between sentence and execution is inevitable if appeal safeguards are to be provided to the condemned person, so it is equally part of human nature that the person will cling to life by exploiting those safeguards to the full. However well-intentioned and even potentially beneficial is the provision of the complex of post-sentence procedures in Virginia, the consequence is that the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death.
ii. Conditions on death row
The stringency of the custodial regime in Mecklenburg, as well as the services (medical, legal and social) and the controls (legislative, judicial and administrative) provided for inmates, are described in some detail above (see paragraphs 61-63 and 65-68). In this connection, the United Kingdom Government drew attention to the necessary requirement of extra security for the safe custody of prisoners condemned to death for murder. Whilst it might thus well be justifiable in principle, the severity of a special regime such as that operated on death row in Mecklenburg is compounded by the fact of inmates being subject to it for a protracted period lasting on average six to eight years.
iii. The applicant’s age and mental state
Unlike Article 2 (art. 2) of the Convention, Article 6 of the 1966 International Covenant on Civil and Political Rights and Article 4 of the 1969 American Convention on Human Rights expressly prohibit the death penalty from being imposed on persons aged less than 18 at the time of commission of the offence. Whether or not such a prohibition be inherent in the brief and general language of Article 2 (art. 2) of the European Convention, its explicit enunciation in other, later international instruments, the former of which has been ratified by a large number of States Parties to the European Convention, at the very least indicates that as a general principle the youth of the person concerned is a circumstance which is liable, with others, to put in question the compatibility with Article 3 (art. 3) of measures connected with a death sentence.
It is in line with the Court’s case-law (as summarised above at paragraph 100) to treat disturbed mental health as having the same effect for the application of Article 3 (art. 3).
Although it is not for this Court to prejudge issues of criminal responsibility and appropriate sentence, the applicant’s youth at the time of the offence and his then mental state, on the psychiatric evidence as it stands, are therefore to be taken into consideration as contributory factors tending, in his case, to bring the treatment on death row within the terms of Article 3 (art. 3).
iv. Possibility of extradition to the Federal Republic of Germany
This argument is not without weight. Furthermore, the Court
cannot overlook either the horrible nature of the murders with which Mr Soering
is charged or the legitimate and beneficial role of extradition arrangements in
combating crime. The purpose for which his removal to the United States was sought, in accordance with the Extradition Treaty between the United Kingdom and the United States, is undoubtedly a legitimate one. However, sending Mr
Soering
to be tried in his own country would remove the danger of a fugitive
criminal going unpunished as well as the risk of intense and protracted
suffering on death row. It is therefore a circumstance of relevance for the
overall assessment under Article 3 (art. 3) in that it goes to the search for
the requisite fair balance of interests and to the proportionality of the
contested extradition decision in the particular case (see paragraphs 89 and
104 above).
(c) Conclusion
However, in the Court’s view, having regard to the very long period of time spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant’s extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3 (art. 3). A further consideration of relevance is that in the particular instance the legitimate purpose of extradition could be achieved by another means which would not involve suffering of such exceptional intensity or duration.
Accordingly, the Secretary of State’s decision to extradite the applicant to the United States would, if implemented, give rise to a breach of Article 3 (art. 3).
This finding in no way puts in question the good faith of the United Kingdom Government, who have from the outset of the present proceedings demonstrated their desire to abide by their Convention obligations, firstly by staying the applicant’s surrender to the United States authorities in accord with the interim measures indicated by the Convention institutions and secondly by themselves referring the case to the Court for a judicial ruling (see paragraphs 1, 4, 24 and 77 above).
II. ALLEGED BREACH OF ARTICLE 6 (art. 6)
A. The United States criminal proceedings
"Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
..."
The Commission expressed the opinion that the proposed extradition of the applicant could not give rise to the responsibility of the United Kingdom Government under Article 6 § 3 (c) (art. 6-3-c). The United Kingdom Government concurred with this analysis and, in the alternative, submitted that the applicant’s allegations were ill-founded.
Accordingly, no issue arises under Article 6 § 3 (c) (art. 6-3-c) in this respect.
B. The extradition proceedings in England
"1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... ."
"3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
..."
Accordingly, the Court has no jurisdiction to entertain the matter.
III. ALLEGED BREACH OF ARTICLE 13 (art. 13)
116. Finally, the applicant alleged a breach of Article 13 (art. 13), which provides:
"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
In his submission, he had no effective remedy in the United Kingdom in respect of his complaint under Article 3 (art. 3). The majority of the Commission arrived at the same conclusion. The United Kingdom Government however disagreed, arguing that Article 13 (art. 13) had no application in the circumstances of the present case or, in the alternative, that the aggregate of remedies provided for under domestic law was adequate.
The United Kingdom Government contended, however, that Article 13 (art. 13) can have no application in the circumstances of the case, because the challenge is in effect to the terms of a treaty between the United Kingdom and the United States and also because the alleged violation of the substantive provision is of an anticipatory nature.
The Court does not consider it necessary to rule specifically on these two objections to applicability since it has come to the conclusion that in any event the requirements of Article 13 (art. 13) were not violated.
Both the applicant and the Commission were of the opinion that the scope of judicial review was too narrow to allow the courts to consider the subject matter of the complaint which the applicant has made in the context of Article 3 (art. 3). The applicant further contended that the courts’ lack of jurisdiction to issue interim injunctions against the Crown was an additional reason rendering judicial review an ineffective remedy.
121. In judicial review proceedings the court may rule the
exercise of executive discretion unlawful on the ground that it is tainted with
illegality, irrationality or procedural impropriety (see paragraph 35 above). In
an extradition case the test of "irrationality", on the basis of the
so-called "Wednesbury principles", would be that no reasonable Secretary
of State could have made an order for surrender in the circumstances (ibid.). According
to the United Kingdom Government, 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, on the ground
that in all the circumstances of the case the decision was one that no
reasonable Secretary of State could take. Although the Convention is not
considered to be part of United Kingdom law (ibid.), the Court is satisfied
that the English courts can review the "reasonableness" of an
extradition decision in the light of the kind of factors relied on by Mr
Soering
before the Convention institutions in the context of Article 3 (art.
3).
122. Mr Soering
did admittedly make an application for
judicial review together with his application for habeas corpus and was met
with an unfavourable response from Lord Justice Lloyd on the issue of
"irrationality" (see paragraph 22 above). However, as Lord Justice
Lloyd explained, the claim failed because it was premature, the courts only
having jurisdiction once the Minister has actually taken his decision (ibid.). Furthermore,
the arguments adduced by Mr
Soering
were by no means the same as those relied on
when justifying his complaint under Article 3 (art. 3) before the Convention
institutions. His counsel before the Divisional Court limited himself to
submitting that the assurance by the United States authorities was so worthless
that no reasonable Secretary of State could regard it as satisfactory under the
Treaty. This is an argument going to the likelihood of the death penalty being
imposed but says nothing about the quality of the treatment awaiting Mr
Soering
after sentence to death, this being the substance of his allegation of inhuman
and degrading treatment.
There was nothing to have stopped Mr Soering
bringing an
application for judicial review at the appropriate moment and arguing
"Wednesbury unreasonableness" on the basis of much the same material
that he adduced before the Convention institutions in relation to the
"death row phenomenon". Such a claim would have been given "the
most anxious scrutiny" in view of the fundamental nature of the human
right at stake (see paragraph 35 above). The effectiveness of the remedy, for
the purposes of Article 13 (art. 13), does not depend on the certainty of a
favourable outcome for Mr
Soering
(see the Swedish Engine Drivers’ Union
judgment of 6 February 1976, Series A no. 20, p. 18, § 50), and in any event it
is not for this Court to speculate as to what would have been the decision of
the English courts.
124. The Court concludes that Mr Soering
did have available to
him under English law an effective remedy in relation to his complaint under
Article 3 (art. 3). This being so, there is no need to inquire into the other
two remedies referred to by the United Kingdom Government.
There is accordingly no breach of Article 13 (art. 13).
IV. APPLICATION OF ARTICLE 50 (art. 50)
125. Under the terms of Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
Mr Soering stated that, since the object of his application was
to secure the enjoyment of his rights guaranteed by the Convention, just satisfaction
of his claims would be achieved by effective enforcement of the Court’s ruling.
He invited the Court to assist the States Parties to the case and himself by
giving directions in relation to the operation of its judgment.
In addition, he claimed the costs and expenses of his representation in the proceedings arising from the request to the United Kingdom Government by the authorities of the United States of America for his extradition. He quantified these costs and expenses at £1,500 and £21,000 for lawyers’ fees in respect of the domestic and Strasbourg proceedings respectively, £2,067 and 4,885.60 FF for his lawyers’ travel and accommodation expenses when appearing before the Convention institutions, and £2,185.80 and 145 FF for sundry out-of-pocket expenses, making an overall total of £26,752.80 and 5,030.60 FF.
The applicant’s essential concern, and the bulk of the argument on all sides, focused on the complaint under Article 3 (art. 3), and on that issue the applicant has been successful. The Court therefore considers that in equity the applicant should recover his costs and expenses in full.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that, in the event of the Secretary of State’s decision to extradite the applicant to the United States of America being implemented, there would be a violation of Article 3 (art. 3);
2. Holds that, in the same event, there would be no violation of Article 6 § 3 (c) (art. 6-3-c);
3. Holds that it has no jurisdiction to entertain the complaint under Article 6 §§ 1 and 3 (d) (art. 6-1, art. 6-3-d);
4. Holds that there is no violation of Article 13 (art. 13);
5. Holds that the United Kingdom is to pay to the applicant, in respect of legal costs and expenses, the sum of £26,752.80 (twenty-six thousand seven hundred and fifty-two pounds sterling and eighty pence) and 5,030.60 FF (five thousand and thirty French francs and sixty centimes), together with any value-added tax that may be chargeable;
6. Rejects the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 7 July 1989.
Rolv RYSSDAL
President
For the Registrar
Herbert PETZOLD
Deputy Registrar
In accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 52 § 2 of the Rules of Court, the separate opinion of Judge De Meyer is annexed to the present judgment.
R.R.
H.P.
CONCURRING OPINION OF JUDGE DE MEYER
The applicant’s extradition to the United States of America would not only expose him to inhuman or degrading treatment or punishment. It would also, and above all, violate his right to life.
Indeed, the most important issue in this case is not "the likelihood of the feared exposure of the applicant to the ‘death row phenomenon’"[1], but the very simple fact that his life would be put in jeopardy by the said extradition.
The second sentence of Article 2 § 1 (art. 2-1) of the Convention, as it was drafted in 1950, states that "no one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law".
In the circumstances of the present case, the applicant’s extradition to the United States would subject him to the risk of being sentenced to death, and executed, in Virginia[2] for a crime for which that penalty is not provided by the law of the United Kingdom[3].
When a person’s right to life is involved, no requested State can be entitled to allow a requesting State to do what the requested State is not itself allowed to do.
If, as in the present case, the domestic law of a State does not provide the death penalty for the crime concerned, that State is not permitted to put the person concerned in a position where he may be deprived of his life for that crime at the hands of another State.
That consideration may already suffice to preclude the United Kingdom from surrendering the applicant to the United States.
There is also something more fundamental.
The second sentence of Article 2 § 1 (art. 2-1) of the Convention was adopted, nearly forty years ago, in particular historical circumstances, shortly after the Second World War. In so far as it still may seem to permit, under certain conditions, capital punishment in time of peace, it does not reflect the contemporary situation, and is now overridden by the development of legal conscience and practice[4].
Such punishment is not consistent with the present state of European civilisation.
De facto, it no longer exists in any State Party to the Convention[5].
Its unlawfulness was recognised by the Committee of Ministers of the Council of Europe when it adopted in December 1982, and opened for signature in April 1983, the Sixth Protocol (P6) to the Convention, which to date has been signed by sixteen, and ratified by thirteen, Contracting States.
No State Party to the Convention can in that context, even if it has not yet ratified the Sixth Protocol, be allowed to extradite any person if that person thereby incurs the risk of being put to death in the requesting State.
Extraditing somebody in such circumstances would be repugnant to European standards of justice, and contrary to the public order of Europe[6].
The applicant’s surrender by the United Kingdom to the United States could only be lawful if the United States were to give absolute assurances that he will not be put to death if convicted of the crime he is charged with[7].
No such assurances were, or can be, obtained.
The Federal Government of the United States is unable to give any undertaking as to what may or may not be decided, or done, by the judicial and other authorities of the Commonwealth of Virginia[8].
In fact, the Commonwealth’s Attorney dealing with the case intends to seek the death penalty[9] and the Commonwealth’s Governor has never commuted a death sentence since the imposition of the death penalty was resumed in 1977[10].
In these circumstances there can be no doubt whatsoever that the applicant’s extradition to the United States would violate his right to life[11].
* Note by the registry: The case is numbered 1/1989/161/217. The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.
* Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (volume 161 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.
[1] § 99 of the judgment.
[2] § 40 of the judgment.
[3] § 27 of the judgment.
[4] See also Article 6 §§ 2 and 6 of the International Covenant on Civil and Political Rights and Article 4 §§ 2 and 3 of the American Convention on Human Rights. The very wording of each of these provisions, adopted respectively in 1966 and in 1969, clearly reflects the evolution of legal conscience and practice towards the universal abolition of the death penalty.
[5] § 102 of the judgment.
[6] See, mutatis mutandis, the judgment of 27 February 1987 by the French Conseil d'État in the Fidan case, Recueil Dalloz Sirey, 1987, pp. 305-310.
[7] See the French Fidan judgment referred to above.
[8] § 97 of the judgment.
[9] § 20 of the judgment.
[10] § 60 of the judgment.
[11] This opinion deals only with what I consider to be the essential points. I would just like to add briefly that (a) I cannot agree with the first sub-paragraph of § 86, or with § 89, since these parts of the Court's reasoning leave too much room for unacceptable infringements of the fundamental rights of persons whose extradition is sought, and (b) with due respect for the Court's case-law, I wish to maintain my earlier reservations concerning the matters at issue in § 115, the first sub-paragraph of § 117 and § 127 (see the W v. the United Kingdom judgment of 8 July 1987, Series A no. 121-A, p. 42, the Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 35, and the W v. the United Kingdom judgment of 9 June 1988 (Article 50) (art. 50), Series A no. 136-C, p. 26).