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.
[...]