CASE OF SOERING v. THE UNITED KINGDOM PDF

CONSEIL
DE LEUROPE
COUNCIL
OF EUROPE
COUR EUROPENNE DES DROITS DE LHOMME
EUROPEAN COURT OF HUMAN RIGHTS

COURT (PLENARY)

CASE OF SOERING v. THE UNITED KINGDOM

(Application no. 14038/88)

JUDGMENT

STRASBOURG

07 July 1989

SOERING v. THE UNITED KINGDOM JUDGMENT

1
In the Soering case
,
The European Court of Human Rights, taking its decision in plenary
session in pursuance of Rule 50 of the Rules of Court and composed of the
following judges:
Mr R. RYSSDAL, President,
Mr J. CREMONA,
Mr Thr VILHJLMSSON,
Mr F. GLCKL,
Mr F. MATSCHER,
Mr L.-E. PETTITI,
Mr B. WALSH,
Sir Vincent EVANS,
Mr R. MACDONALD,
Mr C. RUSSO,
Mr R. BERNHARDT,
Mr A. SPIELMANN,
Mr J. DE MEYER,
Mr J.A. CARRILLO SALCEDO,
Mr N. VALTICOS,
Mr S.K. MARTENS,
Mrs E. PALM,
Mr I. FOIGHEL,
and also of Mr M.-A. EISSEN, Registrar, and Mr H. PETZOLD, Deputy
Registrar,
Having deliberated in private on 27 April and 26 June 1989,
Delivers the following judgment, which was adopted on the last-
mentioned date:
PROCEDURE
1. The case was brought before the Court on 25 January 1989 by the
European Commission of Human Rights ("the Commission"), on 30 January
1989 by the Government of the United Kingdom of Great Britain and
Northern Ireland and on 3 February 1989 by the Government of the Federal
Republic of Germany, within the three-month period laid down by Article
32 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection
of Human Rights and Fundamental Freedoms ("the Convention"). It

Note by the registry: The case is numbered 1/1989/161/217. The second figure indicates
the year in which the case was referred to the Court and the first figure its place on the list
of cases referred in that year; the last two figures indicate, respectively, the case's order on
the list of cases and of originating applications (to the Commission) referred to the Court
since its creation.

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originated in an application (no. 14038/88) against the United Kingdom
lodged with the Commission under Article 25 (art. 25) by a German
national, Mr Jens Soering, on 8 July 1988.
The Commissions request referred to Articles 44 and 48 (art. 44, art. 48)
and to the declaration whereby the United Kingdom recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the
request and of the two governmental applications was to obtain a decision
from the Court as to whether or not the facts of the case disclosed a breach
by the respondent State of its obligations under Articles 3, 6 and 13 (art. 3,
art. 6, art. 13) of the Convention.
2. In response to the enquiry made in accordance with Rule 33 3 (d)
of the Rules of Court, the applicant stated that he wished to take part in the
proceedings pending before the Court and designated the lawyers who
would represent him (Rule 30).
3. The Chamber was constituted on 26 January 1989. It included ex
officio Sir Vincent Evans, the elected judge of British nationality (Article 43
of the Convention) (art. 43), the Federal Republic of Germany at that stage
not being a Party to the case, and Mr R. Ryssdal, the President of the Court
(Rule 21 3 (b)). The names of the other five members, namely Mr J.
Cremona, Mrs D. Bindschedler-Robert, Mr R. Bernhardt, Mr N. Valticos
and Mrs E. Palm, were drawn by lot by the President in the presence of the
Registrar.
On the same day the Chamber relinquished jurisdiction forthwith in
favour of the plenary Court (Rule 50).
4. Likewise on the same day, following requests for an interim measure
made by the Commission and the applicant, the Court indicated to the
United Kingdom Government that it would be advisable not to extradite the
applicant to the United States of America pending the outcome of the
proceedings before the Court (Rule 36).
5. The President of the Court consulted, through the Registrar, the
Agents of the two Government Parties, the Delegate of the Commission and
the representative of the applicant on the need for a written procedure
(Rules 37 1 and 50 3). Thereafter, in accordance with the Presidents
Orders and directions, the following documents were lodged at the registry:
- on 28 March 1989, the memorial of the United Kingdom Government
and the memorial of the applicant;
- on 31 March 1989, the memorial of the German Government;
- on 17 April 1989, the counter-memorial of the applicant;
- on 18 April 1989, further affidavits submitted by the United Kingdom
Government;
- on 20 April 1989, further evidence submitted by the applicant.
On 7 April 1989 the Secretary to the Commission had informed the
Registrar that the Delegate did not propose to reply in writing to the
memorials.

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6. After consulting, through the Registrar, those who would be
appearing before the Court, the President directed on 3 February 1989 that
the oral proceedings should open on 24 April 1989 (Rule 38).
7. On 17 February 1989, having been asked to do so by the applicant,
the President invited the Commission to produce to the Court all the written
and oral pleadings submitted before the Commission. The Commission
complied with this request on 22 February.
8. By letter received on 28 March 1989, Amnesty International,
London, sought leave to submit written comments (Rule 37 2). On 30
March the President granted leave subject to certain conditions. The
comments were filed at the registry on 13 April.
9. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory meeting
immediately beforehand.
There appeared before the Court:
- for the Government of the United Kingdom
Mr M. WOOD, Legal Counsellor,
Foreign and Commonwealth Office, Agent,
Sir Patrick MAYHEW, Q.C., M.P., Attorney General,
Mr M. BAKER, Barrister-at-Law, Counsel,
Miss E. WILMSHURST, Legal Secretariat
to the Law Officers,
Mr D. BENTLEY, Home Office,
Mr T. COBLEY, Home Office, Advisers;
- for the Government of the Federal Republic of Germany
Mr J. MEYER-LADEWIG, Ministerialdirigent,
Federal Ministry of Justice, Agent,
Mr M. GROTZ, Regierungsdirektor,
Federal Ministry of Justice,
Mrs S. WERNER, Richterin am Amtsgericht,
Federal Ministry of Justice, Advisers;
- for the Commission
Mr E. BUSUTTIL, Delegate;
- for the applicant
Mr Colin NICHOLLS, Q.C., Counsel,
Mr R. SPENCER, Solicitor,
Mr F. GARDNER, Solicitor, Advisers.
The Court heard addresses by Sir Patrick Mayhew for the United
Kingdom Government, by Mr Meyer-Ladewig for the German Government,
by Mr Busuttil for the Commission and by Mr Nicholls for the applicant.
10. Various documents were filed by the United Kingdom Government,
the German Government and the applicant on the day of the public hearing
and on dates between 26 April and 15 June 1989.

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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 applicants
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 Sheriffs 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 applicants and Miss Haysoms 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 applicants 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:

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"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 Elizabeths 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
applicants 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
applicants 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

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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 Soerings 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
applicants 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:

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"There existed between Miss Haysom and Soering a folie 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
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 Haysoms 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 Bullards 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 States 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:

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"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
Soerings 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 applicants
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
applicants 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 applicants 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 applicants 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 psychiatrists 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.

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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

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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 fugitives 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

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review the exercise of the Secretary of States 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 Kings 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 individuals right to life and, when an
administrative decision under challenge is said to be one which may put the
applicants 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).

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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 States 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."

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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

14
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 defendants
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.).

15
47. Following a sentence of death, the trial judge must order the
preparation of an investigative report detailing the defendants 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
sentencers 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 defendants 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

16
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 defendants 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 defendants 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

17
Virginia. Thereafter he may once more apply to the United States Supreme
Court for certiorari review of the States 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), affd, 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

18
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 Commonwealths 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

19
General of Virginia (see Virginia Code, section 2.1-124), the Governor of
Virginia or anyone else. It is open to the Commonwealths 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 inmates cell is 3m by 2.2m. Prisoners have
an opportunity for approximately 7 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

20
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.

21
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 States promise will be
honoured.
According to evidence from the Virginia authorities, Virginias 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.

22
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 offenders 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 offenders 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 offenders 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

23
(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 Soerings 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
Commissions 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.

24
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 Commissions opinion and of the separate opinions
contained in the report is reproduced as an annex to this judgment
.
FINAL SUBMISSIONS TO THE COURT BY THE UNITED
KINGDOM GOVERNMENT
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:

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.

25
"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 applicants 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 persons 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 States
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

26
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" ("reconnatre" 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

27
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 applicants 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

28
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 Courts 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 individuals 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

29
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 Soerings 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
applicants 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 Governments view the psychiatric
evidence (see paragraph 21 above) is equivocal as to whether Mr Soering

30
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 applicants 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
Governments 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 Soerings case. These are a defendants lack of any

31
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 defendants 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 Commonwealths 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 Commonwealths 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 Updikes 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

32
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 Commonwealths 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 Courts 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 Courts 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

33
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 persons 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:
"Everyones 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.

34
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
States 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 defendants 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,

35
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 States 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 applicants 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 prisoners 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

36
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 applicants 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 Courts 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

37
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 sentencers
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 applicants 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.

38
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 Courts 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 applicants 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 States decision to extradite the applicant
to the United States would, if implemented, give rise to a breach of Article 3
(art. 3).
This finding in no way puts in question the good faith of the United
Kingdom Government, who have from the outset of the present proceedings
demonstrated their desire to abide by their Convention obligations, firstly by
staying the applicants surrender to the United States authorities in accord
with the interim measures indicated by the Convention institutions and
secondly by themselves referring the case to the Court for a judicial ruling
(see paragraphs 1, 4, 24 and 77 above).
II. ALLEGED BREACH OF ARTICLE 6 (art. 6)
A. The United States criminal proceedings
112. The applicant submitted that, because of the absence of legal aid in
Virginia to fund collateral challenges before the Federal courts (see
paragraph 57 above), on his return to the United States he would not be able
to secure his legal representation as required by Article 6 3 (c) (art. 6-3-c),
which reads:
"Everyone charged with a criminal offence has the following minimum rights:
...

39
(c) to defend himself in person or through legal assistance of his own choosing or, if
he has not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require;
..."
The Commission expressed the opinion that the proposed extradition of
the applicant could not give rise to the responsibility of the United Kingdom
Government under Article 6 3 (c) (art. 6-3-c). The United Kingdom
Government concurred with this analysis and, in the alternative, submitted
that the applicants allegations were ill-founded.
113. The right to a fair trial in criminal proceedings, as embodied in
Article 6 (art. 6), holds a prominent place in a democratic society (see, inter
alia, the Colozza judgment of 12 February 1985, Series A no. 89, p. 16,
32). The Court does not exclude that an issue might exceptionally be raised
under Article 6 (art. 6) by an extradition decision in circumstances where
the fugitive has suffered or risks suffering a flagrant denial of a fair trial in
the requesting country. However, the facts of the present case do not
disclose such a risk.
Accordingly, no issue arises under Article 6 3 (c) (art. 6-3-c) in this
respect.
B. The extradition proceedings in England
114. The applicant further contended that the refusal of the Magistrates
Court in the extradition proceedings to consider evidence as to his
psychiatric condition (see paragraph 21 above) violated paragraphs 1 and 3
(d) of Article 6 (art. 6-1, art. 6-3-d), which respectively provide:
"1. In the determination ... of any criminal charge against him, everyone is entitled
to a fair ... hearing ... ."
"3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him;
..."
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 States 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

40
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 Commissions 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 Courts finding regarding Article 3 (art. 3) (see
paragraph 111 above), the applicants 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.

41
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

42
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 Courts
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).
IV. APPLICATION OF ARTICLE 50 (art. 50)
125. Under the terms of Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by a legal authority or any
other authority of a High Contracting Party is completely or partially in conflict with
the obligations arising from the ... Convention, and if the internal law of the said Party
allows only partial reparation to be made for the consequences of this decision or
measure, the decision of the Court shall, if necessary, afford just satisfaction to the
injured party."
Mr Soering stated that, since the object of his application was to secure
the enjoyment of his rights guaranteed by the Convention, just satisfaction
of his claims would be achieved by effective enforcement of the Courts
ruling. He invited the Court to assist the States Parties to the case and
himself by giving directions in relation to the operation of its judgment.
In addition, he claimed the costs and expenses of his representation in the
proceedings arising from the request to the United Kingdom Government by
the authorities of the United States of America for his extradition. He
quantified these costs and expenses at 1,500 and 21,000 for lawyers fees

43
in respect of the domestic and Strasbourg proceedings respectively, 2,067
and 4,885.60 FF for his lawyers travel and accommodation expenses when
appearing before the Convention institutions, and 2,185.80 and 145 FF for
sundry out-of-pocket expenses, making an overall total of 26,752.80 and
5,030.60 FF.
126. No breach of Article 3 (art. 3) has as yet occurred. Nevertheless,
the Court having found that the Secretary of States decision to extradite to
the United States of America would, if implemented, give rise to a breach of
Article 3 (art. 3), Article 50 (art. 50) must be taken as applying to the facts
of the present case.
127. The Court considers that its finding regarding Article 3 (art. 3) of
itself amounts to adequate just satisfaction for the purposes of Article 50
(art. 50). The Court is not empowered under the Convention to make
accessory directions of the kind requested by the applicant (see, mutatis
mutandis, the Dudgeon judgment of 24 February 1983, Series A no. 59, p.
8, 15). By virtue of Article 54 (art. 54), the responsibility for supervising
execution of the Courts judgment rests with the Committee of Ministers of
the Council of Europe.
128. The United Kingdom Government did not in principle contest the
claim for reimbursement of costs and expenses, but suggested that, in the
event that the Court should find one or more of the applicants complaints
of violation of the Convention to be unfounded, it would be appropriate for
the Court, deciding on an equitable basis as required by Article 50 (art. 50),
to reduce the amount awarded accordingly (see the Le Compte, Van Leuven
and De Meyere judgment of 18 October 1982, Series A no. 54, p. 10, 21).
The applicants essential concern, and the bulk of the argument on all
sides, focused on the complaint under Article 3 (art. 3), and on that issue the
applicant has been successful. The Court therefore considers that in equity
the applicant should recover his costs and expenses in full.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that, in the event of the Secretary of States 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);


44
4. Holds that there is no violation of Article 13 (art. 13);

5. Holds that the United Kingdom is to pay to the applicant, in respect of
legal costs and expenses, the sum of 26,752.80 (twenty-six thousand
seven hundred and fifty-two pounds sterling and eighty pence) and
5,030.60 FF (five thousand and thirty French francs and sixty centimes),
together with any value-added tax that may be chargeable;

6. Rejects the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 7 July 1989.

Rolv RYSSDAL
President

For the Registrar
Herbert PETZOLD
Deputy Registrar

In accordance with Article 51 2 (art. 51-2) of the Convention and Rule
52 2 of the Rules of Court, the separate opinion of Judge De Meyer is
annexed to the present judgment.

R.R.
H.P.

CONCURRING OPINION OF JUDGE DE MEYER
45
The applicants extradition to the United States of America would not
only expose him to inhuman or degrading treatment or punishment. It would
also, and above all, violate his right to life.
Indeed, the most important issue in this case is not "the likelihood of the
feared exposure of the applicant to the death row phenomenon"
1
, but the
very simple fact that his life would be put in jeopardy by the said
extradition.

The second sentence of Article 2 1 (art. 2-1) of the Convention, as it
was drafted in 1950, states that "no one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law".
In the circumstances of the present case, the applicants extradition to the
United States would subject him to the risk of being sentenced to death, and
executed, in Virginia
2
for a crime for which that penalty is not provided by
the law of the United Kingdom
3
.
When a persons right to life is involved, no requested State can be
entitled to allow a requesting State to do what the requested State is not
itself allowed to do.
If, as in the present case, the domestic law of a State does not provide the
death penalty for the crime concerned, that State is not permitted to put the
person concerned in a position where he may be deprived of his life for that
crime at the hands of another State.
That consideration may already suffice to preclude the United Kingdom
from surrendering the applicant to the United States.

There is also something more fundamental.
The second sentence of Article 2 1 (art. 2-1) of the Convention was
adopted, nearly forty years ago, in particular historical circumstances,
shortly after the Second World War. In so far as it still may seem to permit,
under certain conditions, capital punishment in time of peace, it does not
reflect the contemporary situation, and is now overridden by the
development of legal conscience and practice
4
.

1
99 of the judgment.
2
40 of the judgment.
3
27 of the judgment.
4
See also Article 6 2 and 6 of the International Covenant on Civil and Political Rights
and Article 4 2 and 3 of the American Convention on Human Rights. The very wording
of each of these provisions, adopted respectively in 1966 and in 1969, clearly reflects the
evolution of legal conscience and practice towards the universal abolition of the death
penalty.
46
Such punishment is not consistent with the present state of European
civilisation.
De facto, it no longer exists in any State Party to the Convention
5
.
Its unlawfulness was recognised by the Committee of Ministers of the
Council of Europe when it adopted in December 1982, and opened for
signature in April 1983, the Sixth Protocol (P6) to the Convention, which to
date has been signed by sixteen, and ratified by thirteen, Contracting States.
No State Party to the Convention can in that context, even if it has not
yet ratified the Sixth Protocol, be allowed to extradite any person if that
person thereby incurs the risk of being put to death in the requesting State.
Extraditing somebody in such circumstances would be repugnant to
European standards of justice, and contrary to the public order of Europe
6
.

The applicants surrender by the United Kingdom to the United States
could only be lawful if the United States were to give absolute assurances
that he will not be put to death if convicted of the crime he is charged with
7
.
No such assurances were, or can be, obtained.
The Federal Government of the United States is unable to give any
undertaking as to what may or may not be decided, or done, by the judicial
and other authorities of the Commonwealth of Virginia
8
.
In fact, the Commonwealths Attorney dealing with the case intends to
seek the death penalty
9
and the Commonwealths Governor has never
commuted a death sentence since the imposition of the death penalty was
resumed in 1977
10
.
In these circumstances there can be no doubt whatsoever that the
applicants extradition to the United States would violate his right to life
11
.

5
102 of the judgment.
6
See, mutatis mutandis, the judgment of 27 February 1987 by the French Conseil d'tat in
the Fidan case, Recueil Dalloz Sirey, 1987, pp. 305-310.
7
See the French Fidan judgment referred to above.
8
97 of the judgment.
9
20 of the judgment.
10
60 of the judgment.
11
This opinion deals only with what I consider to be the essential points. I would just like
to add briefly that (a) I cannot agree with the first sub-paragraph of 86, or with 89, since
these parts of the Court's reasoning leave too much room for unacceptable infringements of
the fundamental rights of persons whose extradition is sought, and (b) with due respect for
the Court's case-law, I wish to maintain my earlier reservations concerning the matters at
issue in 115, the first sub-paragraph of 117 and 127 (see the W v. the United
Kingdom judgment of 8 July 1987, Series A no. 121-A, p. 42, the Boyle and Rice judgment
of 27 April 1988, Series A no. 131, p. 35, and the W v. the United Kingdom judgment of 9
June 1988 (Article 50) (art. 50), Series A no. 136-C, p. 26).

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