Soering v United Kingdom 

161 Eur. Ct. H.R. (ser. A) (1989) is a landmark judgment of

the European Court of Human Rights (ECtHR) which established that extradition of a young
German national to the United States to face charges of capital murder violated Article 3 of
the European Convention on Human Rights (ECHR) guaranteeing the right against inhuman and
degrading treatment.[1] In addition to the precedence established by the judgment, the judgment
specifically resulted in the United States committing to not seek the death penalty against the
German national involved in the case, and he was eventually extradited to the United States.

Facts: 
The case originated with Application No. 14038/88 filed by Mr Jens Soering, a German national,
against the UK on 8 July 1988. It was brought before the Court on 25 January 1989 by the
European Commission of Human Rights (“the Commission”) on 25 January 1989, by UK on 30
January 1989, and by Germany on 3 February 1989. The object of the request and governmental
applications was to obtain a decision as to whether or not the facts of the case disclosed a breach
by the respondent State of its obligations under Articles 3, 6 and 13 ECHR. On 26 January 1989
the Chamber was constituted and then relinquished jurisdiction in favour of the plenary Court
under Rule 50.

The applicant had been a student at the University of Virginia together with his girlfriend,
Elizabeth Haysom, a Canadian national. Both were arrested for cheque fraud in England in April
1986 after having disappeared from Virginia in October 1985. When interviewed in England by
a police investigator from Bedford County, Virginia, the applicant admitted to stabbing and
killing Miss Haysom’s parents in Bedford County in March 1985 after the parents told him they
would do anything to prevent his and Miss Haysom’s relationship. The applicant was 18 years
old at the time of the homicides.

The applicant was later indicted in abstentia by the Bedford County Circuit Court on charges
alleging capital murder of the Haysoms. On 11 August 1986 the US requested the applicant’s
and Miss Haysom’s extradition under the Extradition Treaty of 1972 between the US and the
UK. . On 29 October 1986 the British Embassy sent a request to the US seeking assurance that in
the event of the applicant being surrendered and convicted for the crimes, the death penalty
would not be imposed or carried out.

 In light of the applicant’s nationality the German Government also requested his extradition
under the Extradition Treaty of 1872 between Germany and the UK. Whilst admissions by the
applicant to a German prosecutor had been made the UK informed Germany that it had
concluded that the case should continue in the US and it had obtained assurances by the Attorney
for Bedford County that a representation would be made that it was the wish of the UK to not
impose or carry out the death penalty, and the Federal Government of the United States sought
assurances from Virginia that this would be honoured. However, during the course of the
proceedings the Virginia authorities informed the UK that the Attorney for Bedford County did
intend to seek the death penalty.
On 16 June 1987 committal proceedings took place before the Chief Stipendiary Magistrate of
the Bow Street Magistrates’ Court. The Magistrate found evidence in a psychiatrist report that
the applicant was suffering from an abnormality of the mind at the time of the homicides
irrelevant to any issue he had to decide and committed the applicant to await the Secretary of
State’s order for extradition to the US. The applicant was denied a writ of habeas corpus in
respect of his committal by a Divisional Court and refused leave for judicial review and leave for
appeal by the House of Lords. He claimed that the assurances from the US were so worthless that
no reasonable Secretary of State could regard them as satisfactory under Article IV of the
Extradition Treaty. Interim measures were given by the Commission and then the Court,
preventing the applicant’s extradition.

Decision & Reasoning: 

The Court examined the UK Extradition Acts. A court would have jurisdiction to quash a
challenged decision to send a fugitive to a country where it was established that there was a
serious risk of inhuman or degrading treatment. While it was the Secretary of State’s practice to
accept an assurance from the prosecuting authorities of the relevant American State that it was
the wish of the UK that the death penalty not be imposed or carried out, the Court noted that
there has never been a case in which the effectiveness of such a written undertaking has been
tested.

The Court examined the relevant domestic criminal law in Virginia. It also examined the prison
conditions in Mecklenburg Correctional Centre.

The Court examined relevant German law and practice. It noted that where a death sentence
could be carried out, the German Government will only grant extradition if there is an
unequivocal assurance by the requesting State that the death penalty will not be imposed or
carried out.

The Court then turned to the alleged breaches of the ECHR, as claimed by the applicant and
denied by the UK.

Soering's application was declared admissible on 10 November 1988, and the European
Commission of Human Rights gave its judgment on 19 January 1989. It decided, by six
votes to five, that in this particular case the extradition would not constitute inhuman or
degrading treatment. It did, however, accept that the extradition of a person to a country
"where it is certain or where there is a serious risk that the person will be subjected to
torture or inhuman treatment the deportation or extradition would, in itself, under such
circumstances constitute inhuman treatment."

1. Alleged Breach of Article 3

The alleged breach of the prohibition on torture or inhuman or degrading treatment or
punishment was derived from the applicant’s exposure to the so-called “death row phenomenon”
which may be described as the combination of circumstances which the applicant would be
exposed to if, after having been extradited to Virginia, he were sentenced to death. The Court
first explained that the Convention does not contain a right prohibiting extradition  (see Article 5
§ 1 (f)). However, if extradition has consequences adversely affecting the enjoyment of a
Convention right, it may, assuming they are not too remote, attract the obligations of a
Contracting State. That the UK has no power over Virginia authorities did not absolve it from
responsibility under Art. 3 for all and any foreseeable consequences of extradition. Further, Art.
3 has no provision for exceptions or derogations. It would be incompatible with the underlying
values of the Convention if a Contracting State could knowingly surrender a fugitive to another
State where there were substantial grounds for believing that he would be in danger of being
subjected to torture or face a real risk of exposure to inhuman or degrading treatment or
punishment in the receiving State. Therefore a decision by a Contracting State to extradite may
give rise to an issue under Art. 3.

Upon application to the current case, the Court determined that the likelihood of the feared
exposure to the “death row phenomenon” was sufficient to bring Art.3 into play.

The Court explained that, as established in its case law, ill-treatment and punishment must attain
a minimum level of severity to fall within the scope of Art. 3. In order for a punishment or
treatment to be “inhuman” or “degrading,” the suffering or humiliation involved must in any
event go beyond that inevitable element of suffering or humiliation connected with a given form
of legitimate punishment.  While capital punishment is permitted under certain conditions by
Art. 2 § 1 ECHR, the Court noted that it must interpret the Convention in light of present-day
conditions, in which, de facto, the death penalty no longer exists in time of peace in the
Contracting States, and as is reflected in Protocol No. 6. With these marked changes, the death
penalty has per se been brought within the prohibition of ill-treatment under Art. 3. However,
because the Convention is to be read as a whole and its provisions in harmony with each other,
Art. 3 cannot be interpreted as generally prohibiting the death penalty. Still, the circumstances
relating to a death sentence can give rise to an Art. 3 issue.

The Court then examined the particular circumstances in the case and determined that a
condemned prisoner has to endure many years of anguish and mounting tension of living because
of the complex post-sentence procedures in Virginia. Second, the conditions in the severe special
regime on death row also factor into an Art. 3 issue. Third, the applicant’s youth at the time of
the offense and his then mental state tend to bring the treatment within the terms of Art. 3. Lastly
was the possibility of his extradition to Germany, removing both the danger of a fugitive
criminal going unpunished and the risk of intense suffering on death row.

In conclusion, the Court determined that the Secretary of State’s decision to extradite the
applicant to the US would, if implemented, give rise to a breach of Art. 3.

2. Alleged breach of Article 6

The Court next considered the applicant’s submission that because of the absence of legal aid in
Virginia to fund collateral challenges before Federal courts, he would not be able to secure his
legal representation as required by Article 6 § 3 (c). The Court found that the facts of the present
case did not disclose a risk of suffering a flagrant denial of a fair trial.

The Court then considered the applicant’s allegation that the refusal of the English Magistrates
court to consider evidence as to his psychiatric condition violated Art. 6 (1) and (3), but because
this complaint was not pleaded before the Commission, the Court had no jurisdiction to entertain
the matter.

3. Alleged breach of Article 13

The Court lastly considered the applicant’s allegation of a breach of Art. 13 ECHR because he
claimed he had no effective remedy in the UK in respect of his complaint under Art. 3. The
Court came to the conclusion that the requirements of Art. 13 were not violated. In coming to
this conclusion, the Court first examined the judicial review proceedings. It was satisfied that the
English courts can review the “reasonableness” of an extradition decision (the test of
“irrationality” on the basis of the so-called “Wednesbury principles”) in light of the kind of
factors relied on by the applicant before the Convention institutions in the context of Art. 3. The
applicant’s claim failed before the House of Lords because it was premature. Furthermore, his
arguments were not the same as those relied on when justifying his complaint under Art. 3. The
English courts’ lack of jurisdiction to grant interim injunctions against the Crown did not detract
from the effectiveness of judicial review, and as such, the Court concluded that the applicant did
have an effective remedy available to him under English law.

4. Application of Article 50

The Court found that its finding regarding Art. 3 itself amounts to adequate just satisfaction for
the purposes of Art. 50. The Court did find that in equity the applicant should recover his costs
and expenses in full, as he was successful on the bulk of the argument, focused on the complaint
under Art. 3. 

Outcome: 
Application granted.