- Soering v. United Kingdom
"Soering v. the United Kingdom" 11 Eur. Ct. H.R. (ser. A) (1989) is a landmark judgment of the
European Court of Human Rights(ECHR) which established that the extraditionof a young German national to the United States to face charges of capital murder violated Article 3 of the European Convention on Human Rightsguaranteeing the right against inhuman and degrading treatment.cite news|title=Juvenile execution, terrorist extradition, and supreme court discretion to consider international death penalty jurisprudence.|publisher=Albany Law Review|date=2005-09-23|author=Burleson, Elizabeth|url=http://www.accessmylibrary.com/coms2/summary_0286-9574233_ITM]
The applicant, Jens Soering, is a German national born in 1966 who was brought by his parents to the
United Stateswhen he was eleven years old. In 1984 he was an 18-year old honor studentat the University of Virginiawhere he met and became good friends with Elizabeth Haysom, a Canadiannational, who was two years his elder. Haysom's parents, William Reginald Haysom and Nancy Astor Haysom, lived near the university in Boonsboro and were against their daughter's relationship with Soering. According to the account provided later to local police, Soering and Elizabeth Haysom decided to kill the latter's parents, but not before they first attempted to escape suspicion by driving to Washington D.C.in a car rented in Charlottesville. On 30 March 1985 Soering drove alone to the Haysom residence where he dined with the unsuspecting couple; during or after dinner he picked a quarrel with them before attacking them viciously with a knife. Both were later found with their throats slit, having also sustained stab and slash wounds to the neck and body. [cite journal| last =Sachs| first =Andrea| title =A Fate Better Than Death| journal =Time| volume =| issue =| pages =| publisher =Time Warner| location =United States of America| date =1991-03-04| url =http://www.time.com/time/magazine/article/0,9171,972429,00.html| doi =| id =| accessdate =2008-01-05 ] [cite news| last =Conley| first =Jay| coauthors =| title = Haysom murders, 20 years ago today: blood sweat and convictions: Starting in 1985, the Haysom double murder case ranged from Virginia to England and ignited a three-year legal battle.| work =The Roanoke Times| pages =| language =| publisher =| date =2005-04-03| url =http://www.roanoke.com/news/roanoke/wb/xp-21202| accessdate =2008-01-05 ]
Soering and Elizabeth Haysom fled to Europe in October 1985 and were arrested in
Englandon 30 April 1986 on charges of chequefraud. Six weeks later a grand juryof the Circuit Court of Bedford County indicted Soering with the capital murderof the Haysoms, as well as their separate non-capital murders. On 11 August 1986 the United States requested both Soering's and Haysom's extradition on the basis of the extradition treaty signed in 1972. A warrant was issued under section 8 of the Extradition Act 1870 for the arrest of Soering and he was committed to await the Home Secretary's order extraditing him to the United States.
Soering filed a petition for
habeas corpuswith the Divisional Courtand requested permission for judicial review of the decision to commit him, arguing that the Extradition Act 1870 did not authorise his extradition for a capital charge. He also cited article IV of the US-UK extradition treaty which provided that a request for the extradition of a person charged with an offence carrying the death penalty could be refused where the requesting country had not given "assurances [...] that the death penalty will not be carried out." An assurance had indeed been provided in this case by the Commonwealth Attorneyof Bedford County, but Soering contended that this was worthless. On 11 December 1987 Lord Justice Lloydin the Divisional Court admitted that the assurance "leaves something to be desired", but refused the request for judicial review, stating that as the Home Secretary had not yet accepted the assurance and Soering's request was therefore premature. Soering appealed to the House of Lords who rejected his claim on 30 June 1988. He then petitioned the Home Secretary without success, the latter authorising his extradition on 3 August 1988.
Anticipating this outcome, Soering had already filed a claim with the
European Commission of Human Rightson 9 July 1988, asserting that he would face inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights ("the Convention") were he to be extradited to the USA, it being likely that the death penalty would be applied in his case.
Soering's arguments that the use by a non-Convention State of the death penalty would engage the right to life was novel in that Article 2(1) of the Convention expressly permits the use of the death penalty, and Article 3 had never been interpreted to bring the death penalty per se within the prohibition of "inhuman or degrading treatment or punishment". The applicant had therefore sought to make it clear that this was not the simple application of a punishment prescribed by law, but rather his exposure to the
death row phenomenonwhereby he would be kept in detention for an unknown period awaiting the execution of his sentence. The ECHR requested that no extradition take place pending the deliverance of its judgment.
Soering's application was declared admissible on 10 November 1988 and the European Commission of Human Rights gave its judgment on 19 January 1989 where it was decided, by six votes to five, that the extradition would not, in this particular case, constitute inhuman or degrading treatment. It did, however, accept that the extradition of a person to a country "where it is certain or where there is a serious risk that the person will be subjected to torture or inhuman treatment the deportation or extradition would, in itself, under such circumstances constitute inhuman treatment."
On 7 July 1989 the ECHR handed down its unanimous judgment. It affirmed the Commission's conclusion that Article 3 could be engaged by the extradition process and that the extraditing state could be responsible for the breach where it is aware of a real risk that the person may be subject to inhuman or degrading treatment. [cite book| last =Collyer| first =Michael| title = Forced Migration and Global Processes: A View from Forced Migration Studies (Program in Migration and Refugee Studies)| publisher =Lexington books| date =2005| location =| pages =| url =| doi =| id =| isbn = 0739112767 ]
Amnesty Internationalhad intervened in the case and submitted that, in the light of "evolving standards in Western Europe regarding the existence and use of the death penalty", this punishment should be considered as inhuman and degrading and was therefore effectively prohibited by Article 3. This was not accepted by the Court as the Convention does allow for the death penalty's use in certain circumstances. It followed that Article 3 could not stand in the way of the extradition of a suspect simply because he or she may be subject to the death penalty.
However, even if the actual extradition itself would not breach Article 3, other factors such as the manner by which the death penalty was administered, the personal circumstances of the detainee and the sentence's disproportionality with the gravity of the crime committed, as well as the conditions of detention, could all violate Article 3. To answer this question the Court needed to determine whether there was a "real risk" of Soering being executed, this they did by relying on arguments made by the Attorney-General. The Court did not give much weight to the assurance given by US authorities that the death penalty would not be used.
Departing from the Commission's ruling, the Court concluded that the "death row phenomenon" did breach Article 3, highlighting four factors which cumulatively gave rise to the violation: (i) the length of detention prior to execution, (ii) the conditions on death row, (iii) Soering's age and mental condition, and (iv) the possibility of his extradition to Germany. As the ECHR concluded:
The UK government sought further assurances from the US regarding the use of the death penalty before extraditing him to Virginia where he was tried and convicted for the
first degree murderof the Haysoms. On 4 September 1990 he was sentenced to two terms of life. He is currently serving his sentence at the Brunswick Correctional Center. [cite news | first=Bill | last=Sizemore | coauthors= | title=No Hope for Jens Soering | date=18 February 2007 | publisher= | url =http://www.jenssoering.com/no_hope | work =The Virginian-Pilot | pages = | accessdate = 2008-01-05 | language = ]
Elizabeth Haysom did not contest her extradition from the UK and she was sentenced on 6 October 1987 to 90 years' imprisonment (45 years on each count of murder). She is currently serving her sentence at the
Fluvanna Correctional Center for Womenin Troy, Virginia. [cite news | first= | last=Signs of the Times | coauthors= | title=Glimpses from Inside | date=September 2003 | publisher= | url =http://george.loper.org/trends/2003/Sep/925.html | work = | pages = | accessdate = 2008-01-05 | language = ]
Soering v. United Kingdom is important in four respects. Firstly, it enlarges the scope of a state's responsibility for breaches of the Convention. A signatory State now has to consider the consequences of returning an individual to a third country where he or she may face treatment susceptible of breaching the Convention. This is notwithstanding the fact that the ill-treatment may be beyond its control or even that assurances have been provided that no ill-treatment has taken place.
Secondly, by finding a breach of the Convention on the territory of a non-signatory State, the Court expanded the obligation on all States considerably. Not only are signatories responsible for consequences of extradition suffered outside their jurisdiction, but this jurisdiction is implicitly extended to acts carried out in non-signatory States. The Convention also overrides agreements concluded with such States. Thirdly, the rationale of the Court's judgment applies equally to
deportationcases, where other articles of the Convention may be engaged such as, for example, Article 6 ( right to a fair trial). Fourthly, the Court's approach to the death penalty, itself permitted by the Convention, may lead to a reduction in its use by non-signatory States seeking the extradition of suspects from signatory States. The decision has the effect of rendering it difficult, if not impossible, for the US and other countries using capital punishmentto seek the extradition of suspects on capital charges from signatory States.
*Restrictions on extraditions
Death row phenomenon
European Convention on Human Rights
* [http://www.worldlii.org/eu/cases/ECHR/1989/14.html Full text of the judgment]
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