European Court of Human Rights - case of Soering v. United Kingdom (July 1989)

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EUROPEAN COURT OF HUMAN RIGHTS

Case of Soering v UK

(Application no. 14038/88)

7 July 1989

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.

12. The homicides in question were committed in Bedford County,

Virginia, in March 1985. The victims, William Reginald Haysom

(aged 72) and Nancy Astor Haysom (aged 53), were the parents of the

applicant's girlfriend, Elizabeth Haysom, who is a Canadian national.

Death in each case was the result of multiple and massive stab and

slash wounds to the neck, throat and body. At the time the applicant

and Elizabeth Haysom, aged 18 and 20 respectively, were students at

the University of Virginia. They disappeared together from Virginia in

October 1985, but were arrested in England in April 1986 in connection

with cheque fraud.

13. The applicant was interviewed in England between 5 and

8 June 1986 by a police investigator from the Sheriff's Department of

Bedford County. In a sworn affidavit dated 24 July 1986 the

investigator recorded the applicant as having admitted the killings in

his presence and in that of two United Kingdom police officers. The

applicant had stated that he was in love with Miss Haysom but that her

parents were opposed to the relationship. He and Miss Haysom had

therefore planned to kill them. They rented a car in Charlottesville

and travelled to Washington where they set up an alibi. The applicant

then went to the parents' house, discussed the relationship with them

and, when they told him that they would do anything to prevent it, a

row developed during which he killed them with a knife.

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.

14. On 11 August 1986 the Government of the United States of

America requested the applicant's and Miss Haysom's extradition under

the terms of the Extradition Treaty of 1972 between the United States

and the United Kingdom (see paragraph 30 below). On 12 September a

Magistrate at Bow Street Magistrates' Court was required by the

Secretary of State for Home Affairs to issue a warrant for the

applicant's arrest under the provisions of section 8 of the

Extradition Act 1870 (see paragraph 32 below). The applicant was

subsequently arrested on 30 December at HM Prison Chelmsford after

serving a prison sentence for cheque fraud.

15. On 29 October 1986 the British Embassy in Washington addressed

a request to the United States authorities in the following terms:

"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."

16. On 30 December 1986 the applicant was interviewed in prison by

a German prosecutor (Staatsanwalt) from Bonn. In a sworn witness

statement the prosecutor recorded the applicant as having said, inter

alia, that "he had never had the intention of killing Mr and

Mrs Haysom and ... he could only remember having inflicted wounds at

the neck on Mr and Mrs Haysom which must have had something to do with

their dying later"; and that in the immediately preceding days "there

had been no talk whatsoever [between him and Elizabeth Haysom] about

killing Elizabeth's parents". The prosecutor also referred to

documents which had been put at his disposal, for example the

statements made by the applicant to the American police investigator,

the autopsy reports and two psychiatric reports on the applicant

(see paragraph 21 below).

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.

17. In a letter dated 20 April 1987 to the Director of the Office

of International Affairs, Criminal Division, United States Department

of Justice, the Attorney for Bedford County, Virginia

(Mr James W. Updike Jr) stated that, on the assumption that the

applicant could not be tried in Germany on the basis of admissions

alone, there was no means of compelling witnesses from the United

States to appear in a criminal court in Germany. On 23 April the

United States, by diplomatic note, requested the applicant's

extradition to the United States in preference to the Federal Republic

of Germany.

18. On 8 May 1987 Elizabeth Haysom was surrendered for extradition to

the United States. After pleading guilty on 22 August as an accessory to

the murder of her parents, she was sentenced on 6 October to 90 years'

imprisonment (45 years on each count of murder).

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".

20. On 1 June 1987 Mr Updike swore an affidavit in his capacity as

Attorney for Bedford County, in which he certified as follows:

"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.

21. On 16 June 1987 at the Bow Street Magistrates' Court committal

proceedings took place before the Chief Stipendiary Magistrate.

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.)

23. On 30 June 1988 the House of Lords rejected the applicant's

petition for leave to appeal against the decision of the Divisional

Court.

24. On 14 July 1988 the applicant petitioned the Secretary of

State, requesting him to exercise his discretion not to make an order

for the applicant's surrender under section 11 of the Extradition Act

1870 (see paragraph 34 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).

25. On 5 August 1988 the applicant was transferred to a prison

hospital where he remained until early November 1988 under the special

regime applied to suicide-risk prisoners.

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.

26. By a declaration dated 20 March 1989 submitted to this Court,

the applicant stated that should the United Kingdom Government require

that he be deported to the Federal Republic of Germany he would

consent to such requirement and would present no factual or legal

opposition against the making or execution of an order to that effect.

II. Relevant domestic law and practice in the United Kingdom

A. Criminal law

27. In England murder is defined as the unlawful killing of a

human being with malice aforethought. The penalty is life

imprisonment. The death penalty cannot be imposed for murder (Murder

(Abolition of the Death Penalty) Act 1965, section 1). Section 2 of

the Homicide Act 1957 provides that where a person kills another, he

shall not be convicted of murder if he was suffering from such

abnormality of mind (whether arising from a condition of arrested

development of mind or any inherent causes or induced by disease or

injury) as substantially impaired his mental responsibility for his

acts in doing the killing. A person who but for the section would be

liable to be convicted of murder shall be liable to be convicted of

manslaughter.

28. English courts do not exercise criminal jurisdiction in

respect of acts of foreigners abroad except in certain cases

immaterial to the present proceedings. Consequently, neither the

applicant, as a German citizen, nor Elizabeth Haysom, a Canadian

citizen, was or is amenable to criminal trial in the United Kingdom.

B. Extradition

29. The relevant general law on extradition is contained in the

Extradition Acts 1870-1935.

30. The extradition arrangements between the United Kingdom and

the United States of America are governed by the Extradition Treaty

signed by the two Governments on 8 June 1972, a Supplementary Treaty

signed on 25 June 1982, and an Exchange of Notes dated 19 and

20 August 1986 amending the Supplementary Treaty. These arrangements

have been incorporated into the law of the United Kingdom by Orders in

Council (the United States of America (Extradition) Order 1976,

S.I. 1976/2144 and the United States of America (Extradition)

(Amendment) Order 1986, S.I. 1986/2020).

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".

31. Extradition between the United Kingdom and the Federal

Republic of Germany is governed by the 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 signed at Bonn

on 23 February 1960 and as further amended by an Exchange of Notes

dated 25 and 27 September 1978. These agreements have been

incorporated into the law of the United Kingdom by Orders in Council

(the Federal Republic of Germany (Extradition) Order 1960,

S.I. 1960/1375 and the Federal Republic of Germany (Extradition)

(Amendment) Order 1978, S.I. 1978/1403).

32. After receipt of an extradition request, the Secretary of

State may, by order, require a magistrate to issue a warrant for the

arrest of the fugitive criminal (Extradition Act 1870, sections 7

and 8).

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).

33. Section 11 of the Extradition Act 1870 provides that decisions

taken in committal proceedings may be challenged by way of application

for habeas corpus. In practice, such application is made to a

Divisional Court and, with leave, to the House of Lords. Habeas

corpus proceedings are primarily concerned with checking that the

magistrate had jurisdiction to hear the case; that there was evidence

before him which could justify the committal; that the offence is an

extradition crime which is not of a political character; and that

there is no bar on other grounds to surrender. Section 12 of the

1870 Act provides for the release of a prisoner, if not surrendered,

at the conclusion of such proceedings or within two months of

committal unless sufficient cause is shown to the contrary.

34. Furthermore, under section 11 of the 1870 Act the Secretary of

State enjoys a discretion not to sign the surrender warrant (Atkinson

v. United States [1971] Appeal Cases 197). This discretion may

override a decision of the courts that a fugitive should be

surrendered, and it is open to every prisoner who has exhausted his

remedies by way of application for habeas corpus to petition the

Secretary of State for that purpose. In considering whether to order

the fugitive's surrender, the Secretary of State is bound to take

account of fresh evidence which was not before the magistrate

(Schtraks v. Government of Israel, loc. cit.).

35. In addition, it is open to the prisoner to challenge both the

decision of the Secretary of State rejecting his petition and the

decision to sign the warrant in judicial review proceedings. In such

proceedings the court may review the exercise of the Secretary of

State's discretion on the basis that it is tainted with illegality,

irrationality or procedural impropriety (Council of Civil Service

Unions and Others v. Minister for the Civil Service [1984] 3 All

England Law Reports 935).

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).

36. There is no provision in the Extradition Acts relating to the

death penalty, but Article IV of the United Kingdom-United States

Treaty provides:

"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."

37. In the case of a fugitive requested by the United States who

faces a charge carrying the death penalty, it is the Secretary of

State's practice, pursuant to Article IV of the United Kingdom-United

States Extradition Treaty, to accept an assurance from the prosecuting

authorities of the relevant State that a representation will be made

to the judge at the time of sentencing that it is the wish of the

United Kingdom that the death penalty should be neither imposed no

carried out. This practice has been described by Mr David Mellor,

then Minister of State at the Home Office, in the following terms:

"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.

38. Concurrent requests for extradition in respect of the same

crime from two different States are not a common occurrence. If both

requests are received at the same time, the Secretary of State decides

which request is to be proceeded with, having regard to all the facts

of the case, including the nationality of the fugitive and the place

of commission of the offence.

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

39. The relevant definition and classification of murder and

sentencing for murder are governed by the Code of Virginia of 1950, as

amended, and the decided cases in the State and Federal courts.

40. Section 18.2-31 of the Virginia Code provides that eight types

of homicide constitute capital murder, punishable as a Class 1 felony,

including "the wilful, deliberate and premeditated killing of more

than one person as a part of the same act or transaction"

(sub-section (g)). The punishment for a Class 1 felony is "death or

imprisonment for life" (Virginia Code, section 18.2-10(a)). Except in

the case of murder for hire, only the "triggerman", that is the actual

perpetrator of the killing, may be charged with capital murder

(Johnston v. Commonwealth, 220 Virginia Reports (Va.) 146, 255 South

Eastern Reporter, Second Series (S.E.2d) 525 (1979)).

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).

41. In most felony trials, including trials for capital murder,

the defendant is guaranteed trial by jury. The defendant may waive

this right but does not often do so.

B. Sentencing procedure

42. The sentencing procedure in a capital murder case in Virginia

is a separate proceeding from the determination of guilt. Following a

determination of guilt of capital murder, the same jury, or judge

sitting without a jury, will forthwith proceed to hear evidence

regarding punishment. All relevant evidence concerning the offence

and the defendant is admissible. Evidence in mitigation is subject to

almost no limitation, while evidence of aggravation is restricted by

statute (Virginia Code, section 19.2-264.4).

43. Unless the prosecution proves beyond a reasonable doubt the

existence of at least one of two statutory aggravating circumstances

- future dangerousness or vileness - the sentencer may not return a

death sentence.

"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)).

44. The imposition of the death penalty on a young person who has

reached the age of majority - which is 18 years (Virginia Code,

section 1.13.42) - is not precluded under Virginia law. Age is a fact

to be weighed by the jury (Peterson v. Commonwealth, 225 Va. 289,

302 S.E.2d 520, certiorari denied, 464 U.S. 865, 104 S.Ct. 202, 78

L.Ed.2d 176 (1983)).

45. Facts in mitigation are specified by statute as including but

not being limited to the following:

"(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).

46. In a case of trial by jury, the jury in a capital murder case

has the duty to consider all evidence relevant to sentencing, both

favourable and unfavourable, before fixing punishment. In particular,

a jury may sentence a defendant to death only after having considered

the evidence in mitigation of the offence (Watkins v. Commonwealth,

229 Va. 469, 331 S.E.2d 422 (1985), certiorari denied, 475 U.S. 1099,

106 S.Ct. 1503, 89 L.Ed.2d 903 (1986)). Furthermore, unless the jury

is unanimous the sentence cannot be death but must be life

imprisonment (Virginia Code, section 19.2-264.4). Even if one or more

of the statutory aggravating circumstances are shown, the sentencer

still remains at liberty to fix a life sentence instead of death in

the light of the mitigating circumstances and even for no reason other

than mercy (Smith v. Commonwealth, loc. cit.).

47. Following a sentence of death, the trial judge must order the

preparation of an investigative report detailing the defendant's

history and "any and all other relevant facts, to the end that the

court may be fully advised as to whether the penalty of death is

appropriate and just"; after consideration of the report, and upon

good cause shown, the judge may set aside the sentence of death and

impose a life sentence (Virginia Code, section 19.2-264.5).

48. Following a moratorium consequent upon a decision of the

United States Supreme Court (Furman v. Georgia, 92 S.Ct. 2726

(1972)), imposition of the death penalty was resumed in Virginia

in 1977, since which date seven persons have been executed. The

means of execution used is electrocution.

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

49. The law of Virginia generally does not recognise a defence of

diminished capacity (Stamper v. Commonwealth, 228 Va. 707, 324 S.E.2d

682 (1985)).

50. A plea of insanity at the time of the offence is recognised as

a defence in Virginia and, if successful, is a bar to conviction.

Such a plea will apply where the defendant knows that the act is wrong

but is driven by an irresistible impulse, induced by some mental

disease affecting the volitive powers, to commit it (Thompson v.

Commonwealth, 193 Va. 704, 70 S.E.2d 284 (1952) and Godley v.

Commonwealth, 2 Virginia Court of Appeals Reports (Va. App.) 249

(1986)) or where he does not understand the nature, character and

consequences of his act or is unable to distinguish right from wrong

(Price v. Commonwealth, 228 Va. 452, 323 S.E.2d 106 (1984)). Where

no insanity defence is interposed, the defendant's mental condition is

only relevant at the guilt stage in so far as it might be probative of

a fact in issue, for example premeditation at the time of the killing

(Le Vasseur v. Commonwealth, 225 Va. 564, 304 S.E.2d 644 (1983),

certiorari denied, 464 U.S. 1063, 104 S.Ct 744, 79 L.Ed.2d 202

(1984)).

51. In a capital murder trial, the defendant's mental condition at

the time of the offence, including any level of mental illness, may be

pleaded as a mitigating factor at the sentencing stage. Evidence on

this may include, but is not limited to, showing that the defendant

was under the influence of extreme mental or emotional disturbance or

that at the time of the offence his capacity to appreciate the

criminality of his conduct was significantly impaired (Virginia Code,

section 19.2-264.4B - see paragraph 45 above).

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

52. The Supreme Court of Virginia reviews automatically every case

in which a capital sentence has been passed, regardless of the plea

entered by the defendant at his trial. In addition to consideration

of "any errors in the trial" alleged by the defendant on appeal, the

Supreme Court reviews the death sentence to determine whether it was

imposed "under the influence of passion, prejudice or any other

arbitrary factor" and whether it is excessive or disproportionate "to

the penalty imposed in similar cases" (Virginia Code,

section 17-110.1).

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.

53. The prisoner may apply to the United States Supreme Court for

certiorari review of the decision of the Supreme Court of Virginia.

If unsuccessful, he may begin collateral attacks upon the conviction

and sentence in habeas corpus proceedings in both State and Federal

courts.

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.

54. The Virginia and Federal statutes and rules of court set

time-limits for the presentation of appeals following conviction or

appeals against the decisions in habeas corpus proceedings. There

are, however, no time-limits for filing the initial State and Federal

habeas corpus petitions.

55. The grounds which may be presented and argued on appeal and in

habeas corpus proceedings are restricted by the "contemporaneous

objections rule" to those which have been raised in the course of the

trial (see Rule 5.25 of the Rules of the Supreme Court of Virginia).

The rule is based on the principle that the trial itself is the "main

event", so that the real issues between the parties should be

canvassed and determined at the trial and not on appeal or in any

subsequent review proceedings. It was adopted to prevent the setting

of traps for trial courts (Keeney v. Commonwealth, 147 Va. 678, 137

South Eastern Reporter (S.E.) 478 (1927)), and so that the trial judge

will be given the opportunity to rule upon the issues intelligently

and unnecessary appeals, reversals and mistrials will be avoided

(Woodson v. Commonwealth, 211 Va. 285, 176 S.E.2d 818 (1970),

certiorari denied, 401 U.S. 959 (1971)). The rule applies equally in

capital cases and is recognised by the Federal courts (see Briley v.

Bass, 584 Federal Supplement (F. Supp.) 807 (Eastern District

Virginia), aff'd, 742 F.2d 155 (4th Circuit 1984)).

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.).

56. The average time between trial and execution in Virginia,

calculated on the basis of the seven executions which have taken place

since 1977, is six to eight years. The delays are primarily due to a

strategy by convicted prisoners to prolong the appeal proceedings as

much as possible. The United States Supreme Court has not as yet

considered or ruled on the "death row phenomenon" and in particular

whether it falls foul of the prohibition of "cruel and unusual

punishment" under the Eighth Amendment to the Constitution of the

United States.

E. Legal assistance for appeals

57. All prisoners who have been sentenced to death have individual

lawyers to represent them, whether privately recruited or

court-appointed. On the other hand, there is no statutory provision

expressly mandating legal assistance to be made available to the

indigent prisoner to file habeas corpus petitions. However, it has

recently been affirmed by a United States Court of Appeal that the

Commonwealth of Virginia is required to provide indigent prisoners who

have been sentenced to death with the assistance of lawyers to pursue

challenges to their death sentences in State habeas corpus actions

(Giarratano v. Murray, 847 F.2d 1118 (4th Circuit 1988) (en banc)

- case currently pending before the United States Supreme Court). In

Federal habeas corpus and certiorari proceedings case-law does not

impose the same obligation (ibid., p. 1122, column 1), for the reason

that the Federal courts would have available the appellate briefs, a

transcript and State court opinion (in certiorari proceedings) and the

briefs of counsel, a transcript and opinion (in habeas corpus

proceedings).

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

58. A Commonwealth's Attorney for each county in Virginia is

elected every four years (Article VII(4) of the Constitution of

Virginia). His primary duty is the prosecution of all criminal cases

within his locality (see Virginia Code, section 15.1-18.1). He has

discretion as to what degree of murder to present for indictment, but

that discretion is limited by considerations of prosecutorial ethics

and his legal duty under the general law and to the public to present

the indictment for the crime which is best supported by the evidence.

He is independent in the discharge of his duty, not being subject to

direction in any relevant way, whether as to charging offences,

seeking sentences or giving related assurances, by the Attorney

General of Virginia (see Virginia Code, section 2.1-124), the Governor

of Virginia or anyone else. It is open to the Commonwealth's Attorney

to engage in plea negotiations, but the court is not bound to accept

any resultant agreement (Rule 3A.8 of the Rules of the Supreme Court

of Virginia).

59. Judges of the district and higher courts of the State of

Virginia are not elected but are appointed to the bench. Their

conduct is governed by published Canons of Judicial Conduct, which

have been adopted by the Supreme Court of Virginia as Rules of the

Supreme Court. Observance of high standards of conduct so as to

preserve the integrity and independence of the judiciary is included

as part of the first Canon.

60. The Governor of the Commonwealth of Virginia has an

unrestricted power "to commute capital punishment" (Article V,

section 12, of the Constitution of Virginia). As a matter of policy,

the Governor does not promise, before a conviction and sentence, that

he will later exercise his commutation power. Since 1977 there has

been no case in which the Governor has commuted a death sentence.

G. Prison conditions in Mecklenburg Correctional Center

61. There are currently 40 people under sentence of death in

Virginia. The majority are detained in Mecklenburg Correctional

Center, which is a modern maximum-security institution with a total

capacity of 335 inmates. Institutional Operating Procedures

(IOP 821.1) establish uniform operating procedures for the

administration, security, control and delivery of necessary services

to death row inmates in Mecklenburg. In addition conditions of

confinement are governed by a comprehensive consent decree handed down

by the United States District Court in Richmond in the case of Alan

Brown et al. v. Allyn R. Sielaff et al. (5 April 1985). Both the

Virginia Department of Corrections and the American Civil Liberties

Union monitor compliance with the terms of the consent decree. The

United States District Court also retains jurisdiction to enforce

compliance with the decree.

62. The channels by which grievances may be ventilated and, if

well-founded, remedied include (1) the use of a Federal Court approved

Inmate Grievance Procedure of the Virginia Department of Corrections,

involving the Warden, the Regional Administrator and the Director of

Prisons, and the Regional Ombudsman, (2) formal or informal contact

between inmates' counsel and the prison staff, (3) complaint to the

courts for breach of the consent decree, and (4) the institution of

legal proceedings under Federal or State tort laws.

63. The size of a death row inmate's cell is 3m by 2.2m.

Prisoners have an opportunity for approximately 7½ hours' recreation

per week in summer and approximately 6 hours' per week, weather

permitting, in winter. The death row area has two recreation yards,

both of which are equipped with basketball courts and one of which is

equipped with weights and weight benches. Inmates are also permitted

to leave their cells on other occasions, such as to receive visits, to

visit the law library or to attend the prison infirmary. In addition,

death row inmates are given one hour out-of-cell time in the morning

in a common area. Each death row inmate is eligible for work

assignments, such as cleaning duties. When prisoners move around the

prison they are handcuffed, with special shackles around the waist.

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.

64. The applicant adduced much evidence of extreme stress,

psychological deterioration and risk of homosexual abuse and physical

attack undergone by prisoners on death row, including Mecklenburg

Correctional Center. This evidence was strongly contested by the

United Kingdom Government on the basis of affidavits sworn by

administrators from the Virginia Department of Corrections.

65. Death row inmates receive the same medical service as inmates

in the general population. An infirmary equipped with adequate

supplies, equipment and staff provides for 24-hour in-patient care,

and emergency facilities are provided in each building. Mecklenburg

also provides psychological and psychiatric services to death row

inmates. The United States District Court (Eastern District of

Virginia) has recently upheld the adequacy of mental health treatment

available to death row inmates in Mecklenburg (Stamper et al. v.

Blair et al., decision of 14 July 1988).

66. Inmates are allowed non-contact visits in a visiting room on

Saturdays, Sundays and holidays between 8.30am and 3.30pm. Attorneys

have access to their clients during normal working hours on request as

well as during the scheduled visiting hours. Death row inmates who

have a record of good behaviour are eligible for contact visits with

members of their immediate family two days per week. Outgoing

correspondence from inmates is picked up daily and all incoming

correspondence is delivered each evening.

67. As a security precaution, pursuant to rules applicable to all

institutions in Virginia, routine searches are conducted of the entire

institution on a quarterly basis. These searches may last for

approximately a week. During such times, called lockdowns, inmates

are confined to their cells; they are showered, receive medical,

dental and psychological services outside their cells as deemed

necessary by medical staff, and upon request may visit the law

library, and are allowed legal visits and legal telephone calls.

Other services such as meals are provided to the inmates in their

cells. During the lockdown, privileges and out-of-cell time are

gradually increased to return to normal operations.

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.

68. A death row prisoner is moved to the death house 15 days

before he is due to be executed. The death house is next to the death

chamber where the electric chair is situated. Whilst a prisoner is in

the death house he is watched 24 hours a day. He is isolated and has

no light in his cell. The lights outside are permanently lit. A

prisoner who utilises the appeals process can be placed in the death

house several times.

H. The giving and effect of assurances in relation to the death

penalty

69. Relations between the United Kingdom and the United States of

America on matters concerning extradition are conducted by and with

the Federal and not the State authorities. However, in respect of

offences against State laws the Federal authorities have no legally

binding power to provide, in an appropriate extradition case, an

assurance that the death penalty will not be imposed or carried out.

In such cases the power rests with the State. If a State does decide

to give a promise in relation to the death penalty, the United States

Government has the power to give an assurance to the extraditing

Government that the State's promise will be honoured.

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

70. There is no way of compelling American witnesses to give

evidence at a trial in the Federal Republic of Germany. However, such

witnesses would normally, unless imprisoned, be free to appear

voluntarily before a German court and the German authorities would pay

their expenses. Furthermore, a United States Federal court may,

pursuant to a letter rogatory or a request from a foreign tribunal,

order a person to give testimony or a statement or to produce a

document or other thing for use in a proceeding in a foreign tribunal

(28 United States Code, section 1782). In addition, public documents,

for example the transcript of a criminal trial, are available to

foreign prosecuting authorities.

IV. Relevant law and practice of the Federal Republic of Germany

71. German criminal law applies to acts committed abroad by a

German national if the act is liable to punishment at the place where

the offence is committed (Criminal Code, section 7(2)).

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).

73. Under the terms of the Juvenile Court Act (1953) as amended,

if a young adult - defined as a person who is 18 but not yet 21 years

of age at the time of the criminal act (section 1(3)) - commits an

offence, the judge will apply the provisions applicable to a juvenile

- defined as a person who is at least 14 but not yet 18 years of age

(ibid.) - if, inter alia, "the overall assessment of the offender's

personality, having regard also to the circumstances of his

environment, reveals that, according to his moral and mental

development, he was still equal to a juvenile at the time of

committing the offence" (section 105(1)). The sentence for young

adults who come within this section is youth imprisonment of 6 months

to 10 years or, under certain conditions, of indeterminate duration

(sections 18, 19 and 105(3)).

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)).

74. Where an offender, at the time of commission of the offence,

was incapable of appreciating the wrongfulness of the offence or of

acting in accordance with such appreciation by reason of a morbid

mental or emotional disturbance, by reason of a profound disturbance

of consciousness or by reason of mental deficiency or some other

serious mental or emotional abnormality, there can be no culpability

on his part and he may not be punished (Criminal Code, section 20).

In such a case, however, it is possible for an order to be made

placing the offender in a psychiatric hospital indefinitely

(Criminal Code, section 63).

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.

75. Where a death sentence is risked, the Federal Government will

grant extradition only if there is an unequivocal assurance by the

requesting State that the death penalty will not be imposed or that it

will not be carried out. The German-United States Extradition Treaty

of 20 June 1978, in force since 29 August 1980, contains a provision

(Article 12) corresponding, in its essentials, to Article IV of the

United Kingdom/United States Extradition Treaty (see paragraph 36

above). The Government of the Federal Republic of Germany stated in

evidence that they would not have deemed an assurance of the kind

given by the United States Government in the present case to be

adequate and would have refused extradition. In accordance with

recent judicial decisions, the question whether an adequate assurance

has been given is subject to examination in proceedings before the

higher regional court.

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).

77. On 11 August 1988 the President of the Commission indicated to

the United Kingdom Government, in accordance with Rule 36 of the

Commission's Rules of Procedure, that it was desirable, in the

interests of the parties and the proper conduct of the proceedings,

not to extradite the applicant to the United States until the

Commission had had an opportunity to examine the application. This

indication was subsequently prolonged by the Commission on several

occasions until the reference of the case to the Court.

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.*

_______________

* 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.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE UNITED KINGDOM GOVERNMENT

79. At the public hearing on 24 April 1989 the United Kingdom

Government maintained the concluding submissions set out in their

memorial, whereby they requested the Court to hold

"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)

80. The applicant alleged that the decision by the Secretary of

State for the Home Department to surrender him to the authorities of

the United States of America would, if implemented, give rise to a

breach by the United Kingdom of Article 3 (art. 3) of the Convention,

which provides:

"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

81. The alleged breach derives from the applicant's exposure to

the so-called "death row phenomenon". This phenomenon may be

described as consisting in a combination of circumstances to which the

applicant would be exposed if, after having been extradited to

Virginia to face a capital murder charge, he were sentenced to death.

82. In its report (at paragraph 94) the Commission reaffirmed "its

case-law that a person's deportation or extradition may give rise to

an issue under Article 3 (art. 3) of the Convention where there are

serious reasons to believe that the individual will be subjected, in

the receiving State, to treatment contrary to that Article (art. 3)".

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.

83. The United Kingdom Government, on the other hand, contended

that Article 3 (art. 3) should not be interpreted so as to impose

responsibility on a Contracting State for acts which occur outside its

jurisdiction. In particular, in their submission, extradition does

not involve the responsibility of the extraditing State for inhuman or

degrading treatment or punishment which the extradited person may

suffer outside the State's jurisdiction. To begin with, they

maintained, it would be straining the language of Article 3 (art. 3)

intolerably to hold that by surrendering a fugitive criminal the

extraditing State has "subjected" him to any treatment or punishment

that he will receive following conviction and sentence in the

receiving State. Further arguments advanced against the approach of

the Commission were that it interferes with international treaty

rights; it leads to a conflict with the norms of international

judicial process, in that it in effect involves adjudication on the

internal affairs of foreign States not Parties to the Convention or to

the proceedings before the Convention institutions; it entails grave

difficulties of evaluation and proof in requiring the examination of

alien systems of law and of conditions in foreign States; the practice

of national courts and the international community cannot reasonably

be invoked to support it; it causes a serious risk of harm in the

Contracting State which is obliged to harbour the protected person,

and leaves criminals untried, at large and unpunished.

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.

85. As results from Article 5 § 1 (f) (art. 5-1-f), which

permits "the lawful ... detention of a person against whom action is

being taken with a view to ... extradition", no right not to be

extradited is as such protected by the Convention. Nevertheless, in

so far as a measure of extradition has consequences adversely

affecting the enjoyment of a Convention right, it may, assuming that

the consequences are not too remote, attract the obligations of a

Contracting State under the relevant Convention guarantee

(see, mutatis mutandis, the Abdulaziz, Cabales and Balkandali judgment

of 25 May 1985, Series A no. 94, pp. 31-32, §§ 59-60 - in relation to

rights in the field of immigration). What is at issue in the present

case is whether Article 3 (art. 3) can be applicable when the adverse

consequences of extradition are, or may be, suffered outside the

jurisdiction of the extraditing State as a result of treatment or

punishment administered in the receiving State.

86. Article 1 (art. 1) of the Convention, which provides that "the

High Contracting Parties shall secure to everyone within their

jurisdiction the rights and freedoms defined in Section I", sets a

limit, notably territorial, on the reach of the Convention. In

particular, the engagement undertaken by a Contracting State is

confined to "securing" ("reconnaître" in the French text) the listed

rights and freedoms to persons within its own "jurisdiction".

Further, the Convention does not govern the actions of States not

Parties to it, nor does it purport to be a means of requiring the

Contracting States to impose Convention standards on other States.

Article 1 (art. 1) cannot be read as justifying a general

principle to the effect that, notwithstanding its extradition

obligations, a Contracting State may not surrender an individual

unless satisfied that the conditions awaiting him in the country of

destination are in full accord with each of the safeguards of the

Convention. Indeed, as the United Kingdom Government stressed, the

beneficial purpose of extradition in preventing fugitive offenders

from evading justice cannot be ignored in determining the scope of

application of the Convention and of Article 3 (art. 3)

in particular.

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.

87. In interpreting the Convention regard must be had to its

special character as a treaty for the collective enforcement of human

rights and fundamental freedoms (see the Ireland v. the United Kingdom

judgment of 18 January 1978, Series A no. 25, p. 90, § 239). Thus,

the object and purpose of the Convention as an instrument for the

protection of individual human beings require that its provisions be

interpreted and applied so as to make its safeguards practical and

effective (see, inter alia, the Artico judgment of 13 May 1980,

Series A no. 37, p. 16, § 33). In addition, any interpretation of the

rights and freedoms guaranteed has to be consistent with "the general

spirit of the Convention, an instrument designed to maintain and

promote the ideals and values of a democratic society" (see the

Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976,

Series A no. 23, p. 27, § 53).

88. Article 3 (art. 3) makes no provision for exceptions and no

derogation from it is permissible under Article 15 (art. 15) in time

of war or other national emergency. This absolute prohibition of

torture and of inhuman or degrading treatment or punishment under the

terms of the Convention shows that Article 3 (art. 3) enshrines one

of the fundamental values of the democratic societies making up the

Council of Europe. It is also to be found in similar terms in other

international instruments such as the 1966 International Covenant on

Civil and Political Rights and the 1969 American Convention on Human

Rights and is generally recognised as an internationally accepted

standard.

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).

89. What amounts to "inhuman or degrading treatment or punishment"

depends on all the circumstances of the case (see paragraph 100

below). Furthermore, inherent in the whole of the Convention is a

search for a fair balance between the demands of the general interest

of the community and the requirements of the protection of the

individual's fundamental rights. As movement about the world becomes

easier and crime takes on a larger international dimension, it is

increasingly in the interest of all nations that suspected offenders

who flee abroad should be brought to justice. Conversely, the

establishment of safe havens for fugitives would not only result in

danger for the State obliged to harbour the protected person but also

tend to undermine the foundations of extradition. These

considerations must also be included among the factors to be taken

into account in the interpretation and application of the notions of

inhuman and degrading treatment or punishment in extradition cases.

90. It is not normally for the Convention institutions to

pronounce on the existence or otherwise of potential violations of the

Convention. However, where an applicant claims that a decision to

extradite him would, if implemented, be contrary to Article 3

(art. 3) by reason of its foreseeable consequences in the requesting

country, a departure from this principle is necessary, in view of the

serious and irreparable nature of the alleged suffering risked, in

order to ensure the effectiveness of the safeguard provided by that

Article (art. 3) (see paragraph 87 above).

91. In sum, the decision by a Contracting State to extradite a

fugitive may give rise to an issue under Article 3 (art. 3),

and hence engage the responsibility of that State under the

Convention, where substantial grounds have been shown for believing

that the person concerned, if extradited, faces a real risk of being

subjected to torture or to inhuman or degrading treatment or

punishment in the requesting country. The establishment of such

responsibility inevitably involves an assessment of conditions in the

requesting country against the standards of Article 3 (art. 3)

of the Convention. Nonetheless, there is no question of adjudicating

on or establishing the responsibility of the receiving country,

whether under general international law, under the Convention or

otherwise. In so far as any liability under the Convention is or may

be incurred, it is liability incurred by the extraditing Contracting

State by reason of its having taken action which has as a direct

consequence the exposure of an individual to proscribed ill-treatment.

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"

93. The United Kingdom Government, contrary to the Government of

the Federal Republic of Germany, the Commission and the applicant, did

not accept that the risk of a death sentence attains a sufficient

level of likelihood to bring Article 3 (art. 3) into play. Their

reasons were fourfold.

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.

95. Under Virginia law, before a death sentence can be returned

the prosecution must prove beyond reasonable doubt the existence of at

least one of the two statutory aggravating circumstances, namely

future dangerousness or vileness (see paragraph 43 above). In this

connection, the horrible and brutal circumstances of the killings (see

paragraph 12 above) would presumably tell against the applicant,

regard being had to the case-law on the grounds for establishing the

"vileness" of the crime (see paragraph 43 above).

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).

96. These various elements arguing for or against the imposition

of a death sentence have to be viewed in the light of the attitude of

the prosecuting authorities.

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.

98. The applicant contended that representations concerning the

wishes of a foreign government would not be admissible as a matter of

law under the Virginia Code or, if admissible, of any influence on the

sentencing judge.

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".

99. The Court's conclusion is therefore that the likelihood of the

feared exposure of the applicant to the "death row phenomenon" has

been shown to be such as to bring Article 3 (art. 3) into play.

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

100. As is established in the Court's case-law, ill-treatment,

including punishment, must attain a minimum level of severity if it is

to fall within the scope of Article 3 (art. 3). The assessment of

this minimum is, in the nature of things, relative; it depends on all

the circumstances of the case, such as the nature and context of the

treatment or punishment, the manner and method of its execution, its

duration, its physical or mental effects and, in some instances, the

sex, age and state of health of the victim (see the above-mentioned

Ireland v. the United Kingdom judgment, Series A no. 25, p. 65, § 162;

and the Tyrer judgment of 25 April 1978, Series A no. 26, pp. 14-15,

§§ 29 and 30).

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.

101. Capital punishment is permitted under certain conditions by

Article 2 § 1 (art. 2-1) of the Convention, which reads:

"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).

102. Certainly, "the Convention is a living instrument which ...

must be interpreted in the light of present-day conditions"; and, in

assessing whether a given treatment or punishment is to be regarded as

inhuman or degrading for the purposes of Article 3 (art. 3), "the

Court cannot but be influenced by the developments and commonly

accepted standards in the penal policy of the member States of the

Council of Europe in this field" (see the above-mentioned Tyrer

judgment, Series A no. 26, pp. 15-16, § 31). De facto the death

penalty no longer exists in time of peace in the Contracting States to

the Convention. In the few Contracting States which retain the death

penalty in law for some peacetime offences, death sentences, if ever

imposed, are nowadays not carried out. This "virtual consensus in

Western European legal systems that the death penalty is, under

current circumstances, no longer consistent with regional standards of

justice", to use the words of Amnesty International, is reflected in

Protocol No. 6 (P6) to the Convention, which provides for the

abolition of the death penalty in time of peace. Protocol No. 6

(P6) was opened for signature in April 1983, which in the practice of

the Council of Europe indicates the absence of objection on the part

of any of the Member States of the Organisation; it came into force in

March 1985 and to date has been ratified by thirteen Contracting

States to the Convention, not however including the United Kingdom.

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.

103. The Convention is to be read as a whole and Article 3 (art. 3)

should therefore be construed in harmony with the provisions of

Article 2 (art. 2) (see, mutatis mutandis, the Klass and Others

judgment of 6 September 1978, Series A no. 28, p. 31, § 68). On this

basis Article 3 (art. 3) evidently cannot have been intended by the

drafters of the Convention to include a general prohibition of the

death penalty since that would nullify the clear wording of

Article 2 § 1 (art. 2-1).

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.

104. That does not mean however that circumstances relating to a

death sentence can never give rise to an issue under Article 3

(art. 3). The manner in which it is imposed or executed, the personal

circumstances of the condemned person and a disproportionality to the

gravity of the crime committed, as well as the conditions of detention

awaiting execution, are examples of factors capable of bringing the

treatment or punishment received by the condemned person within the

proscription under Article 3 (art. 3). Present-day attitudes in the

Contracting States to capital punishment are relevant for the

assessment whether the acceptable threshold of suffering or

degradation has been exceeded.

(b) The particular circumstances

105. The applicant submitted that the circumstances to which he

would be exposed as a consequence of the implementation of the

Secretary of State's decision to return him to the United States,

namely the "death row phenomenon", cumulatively constituted such

serious treatment that his extradition would be contrary to Article 3

(art. 3). He cited in particular the delays in the appeal and review

procedures following a death sentence, during which time he would be

subject to increasing tension and psychological trauma; the fact, so

he said, that the judge or jury in determining sentence is not obliged

to take into account the defendant's age and mental state at the time

of the offence; the extreme conditions of his future detention on

"death row" in Mecklenburg Correctional Center, where he expects to be

the victim of violence and sexual abuse because of his age, colour and

nationality; and the constant spectre of the execution itself,

including the ritual of execution. He also relied on the possibility

of extradition or deportation, which he would not oppose, to the

Federal Republic of Germany as accentuating the disproportionality of

the Secretary of State's decision.

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

106. The period that a condemned prisoner can expect to spend on

death row in Virginia before being executed is on average six to eight

years (see paragraph 56 above). This length of time awaiting death

is, as the Commission and the United Kingdom Government noted, in a

sense largely of the prisoner's own making in that he takes advantage

of all avenues of appeal which are offered to him by Virginia law.

The automatic appeal to the Supreme Court of Virginia normally takes

no more than six months (see paragraph 52 above). The remaining time

is accounted for by collateral attacks mounted by the prisoner himself

in habeas corpus proceedings before both the State and Federal courts

and in applications to the Supreme Court of the United States for

certiorari review, the prisoner at each stage being able to seek a

stay of execution (see paragraphs 53-54 above). The remedies

available under Virginia law serve the purpose of ensuring that the

ultimate sanction of death is not unlawfully or arbitrarily imposed.

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

107. As to conditions in Mecklenburg Correctional Center, where the

applicant could expect to be held if sentenced to death, the Court

bases itself on the facts which were uncontested by the United Kingdom

Government, without finding it necessary to determine the reliability

of the additional evidence adduced by the applicant, notably as to the

risk of homosexual abuse and physical attack undergone by prisoners on

death row (see paragraph 64 above).

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

108. At the time of the killings, the applicant was only 18 years

old and there is some psychiatric evidence, which was not contested as

such, that he "was suffering from [such] an abnormality of mind ... as

substantially impaired his mental responsibility for his acts"

(see paragraphs 11, 12 and 21 above).

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).

109. Virginia law, as the United Kingdom Government and the

Commission emphasised, certainly does not ignore these two factors.

Under the Virginia Code account has to be taken of mental disturbance

in a defendant, either as an absolute bar to conviction if it is

judged to be sufficient to amount to insanity or, like age, as a fact

in mitigation at the sentencing stage (see paragraphs 44-47 and 50-51

above). Additionally, indigent capital murder defendants are entitled

to the appointment of a qualified mental health expert to assist in

the preparation of their submissions at the separate sentencing

proceedings (see paragraph 51 above). These provisions in the

Virginia Code undoubtedly serve, as the American courts have stated,

to prevent the arbitrary or capricious imposition of the death penalty

and narrowly to channel the sentencer's discretion (see paragraph 48

above). They do not however remove the relevance of age and mental

condition in relation to the acceptability, under Article 3

(art. 3), of the "death row phenomenon" for a given individual once

condemned to death.

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

110. For the United Kingdom Government and the majority of the

Commission, the possibility of extraditing or deporting the applicant

to face trial in the Federal Republic of Germany (see paragraphs 16,

19, 26, 38 and 71-74 above), where the death penalty has been

abolished under the Constitution (see paragraph 72 above), is not

material for the present purposes. Any other approach, the United

Kingdom Government submitted, would lead to a "dual standard"

affording the protection of the Convention to extraditable persons

fortunate enough to have such an alternative destination available but

refusing it to others not so fortunate.

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

111. For any prisoner condemned to death, some element of delay

between imposition and execution of the sentence and the experience of

severe stress in conditions necessary for strict incarceration are

inevitable. The democratic character of the Virginia legal system in

general and the positive features of Virginia trial, sentencing and

appeal procedures in particular are beyond doubt. The Court agrees

with the Commission that the machinery of justice to which the

applicant would be subject in the United States is in itself neither

arbitrary nor unreasonable, but, rather, respects the rule of law and

affords not inconsiderable procedural safeguards to the defendant in a

capital trial. Facilities are available on death row for the

assistance of inmates, notably through provision of psychological and

psychiatric services (see paragraph 65 above).

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).

[...]

II. ALLEGED BREACH OF ARTICLE 6 (art. 6)

A. The United States criminal proceedings

[...]

115. As the Delegate of the Commission pointed out, this complaint

was not pleaded before the Commission. Such claims as the applicant

then made of a failure to take proper account of the psychiatric

evidence were in relation to Article 3 (art. 3) and limited to the

Secretary of State's ultimate decision to extradite him to the United

States. He did not formulate any grievances, whether under Article 6

(art. 6), Article 3 (art. 3) or Article 13 (art. 13), regarding the

scope or conduct of the Magistrates' Court proceedings as such. This

being so, the new allegation of a breach of Article 6 (art. 6) constitutes

not merely a further legal submission or argument but a fresh and

separate complaint falling outside the compass of the case, which is

delimited by the Commission's decision on admissibility (see, inter

alia, the Schiesser judgment of 4 December 1979, Series A no. 34,

p. 17, § 41, and the Johnston and Others judgment of 18 December 1986,

Series A no. 112, p. 23, § 48).

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.

117. In view of the Court's finding regarding Article 3 (art. 3)

(see paragraph 111 above), the applicant's claim under that Article

(art. 3) cannot be regarded either as incompatible with the provisions

of the Convention or as not "arguable" on its merits (see, inter alia,

the Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23,

§ 52).

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.

118. The United Kingdom Government relied on the aggregate of

remedies provided by the Magistrates' Court proceedings, an

application for habeas corpus and an application for judicial review

(see paragraphs 21-23, 32-33 and 35 above).

119. The Court will commence its examination with judicial review

proceedings since they constitute the principal means for challenging

a decision to extradite once it has been taken.

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.

120. Article 13 (art. 13) guarantees the availability of a remedy

at national level to enforce the substance of the Convention rights

and freedoms in whatever form they may happen to be secured in the

domestic legal order (see the above-mentioned Boyle and Rice judgment,

Series A no. 131, p. 23, § 52). The effect of Article 13 (art. 13)

is thus to require the provision of a domestic remedy allowing the

competent "national authority" both to deal with the substance of the

relevant Convention complaint and to grant appropriate relief (see,

inter alia, the Silver and Others judgment of 25 March 1983, Series A

no. 61, p. 42, § 113 (a)).

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.

123. The English courts' lack of jurisdiction to grant interim

injunctions against the Crown (see paragraph 35 in fine above) does

not, in the Court's opinion, detract from the effectiveness of

judicial review in the present connection, since there is no

suggestion that in practice a fugitive would ever be surrendered

before his application to the Divisional Court and any eventual appeal

therefrom had been determined.

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).

[...]

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.

[...]