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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 ç 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 ç 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. <2>
--------------------------------
<2> 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 ç 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 ç 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,
çç 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" ({"reconnaitre"} 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, ç 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, ç 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, ç 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
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