Soering v. United Kingdom

Jens Soering was a German national who came to the United States to study at the University of Virginia. While there, he became friends with Elizabeth Haysom, a Canadian national.  Haysom’s parents did not approve of Soering and Haysom’s relationship.  In March 1985 the couple made plans to kill Haysom’s parents.  They rented a car and drove to Washington D.C. where they established their alibi.  Soering and Haysom then traveled to her parents’ home in Virginia.  During the visit, an argument ensued and Soering killed both parents with a knife. The couple subsequently fled to England.

On June 13, 1986 a grand jury in Bedford County Circuit Court indicted Soering and Haysom on charges of capital murder. The United States subsequently requested the extradition of Soering and Haysom in keeping with the Extradition Treaty of 1972 between the United States and the United Kingdom.  Pursuant to the treaty, the Magistrate at Bow Street Magistrates’ Court issued a warrant for Soering’s arrest.

Following Soering’s arrest, at the request of the United Kingdom government, the Attorney-General of Virginia provided an assurance that “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.” A psychiatric assessment which found that Soering suffered from an abnormality of mind that “substantially impaired his mental responsibility for his acts” was also carried out.

Soering filed a petition for habeas corpus with the Divisional Court in which he requested judicial review of the decision to commit him.  Soering argued that Article IV of the Extradition Treaty authorized extradition for capital murder charges only when assurances had been made that the death penalty would not be carried out.  The Divisional Court refused Soering’s request for judicial review.  In his judgment, Lord Justice Lloyd admitted that the assurance left “something to be desired”.  However, he held that Soering’s request was premature, as the Home Secretary had not yet accepted the assurance.  Soering subsequently appealed to the House of Lords who also denied his request.  He then petitioned the Home Secretary, requesting that he exercise his discretion not to order Soering’s surrender.  This request was also denied and the extradition was authorized.

Anticipating a negative outcome, Soering filed a claim with the European Commission of Human Rights.  Soering alleged that the decision of the Home Secretary to extradite him to the United States, if implemented, would violate Article 3 (art. 3) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), which provides: “no one shall be subjected to torture or to inhuman or degrading treatment or punishment” (art.3). Additionally, Soering submitted that, because Virginia did not provide legal aid for collateral challenges before the Federal courts, if the extradition is implemented, he would be denied his rights to legal assistance under Article 6 § 3 (c) (art. 6-3-c).  Finally, Soering alleged that, in breach of Article 13 (art. 13), he had no effective remedy under United Kingdom law with respect to his Article 3(art. 3) complaint. On January 19, 1989, the Commission brought the complaint before the European Court of Human Rights.

The Court first considered the applicability of Article 3 to extradition cases.  It held that Article 3 applied to cases involving the extradition of prisoners to regions where they may sustain ‘inhuman or degrading treatment or punishment’.

The Court then considered what constituted “inhuman or degrading treatment”.  It held that because the US indicated that it intended to pursue the death penalty, there was a substantial risk that Soering would be subject to the “death row phenomenon” (a combination of circumstances an individual is exposed to after being sentenced to death).  As such, the Court held that the likelihood of the feared exposure of the applicant to the "death row phenomenon" was sufficient to attract the operation of Article 3 (art. 3).

Because Article 3 had not been held to provide a general prohibition on the death penalty, the Court then considered whether the factual allegations presented by the applicant, met the degree of severity contemplated by Article 3 (art. 3).  In its ruling, the Court considered four factors: 1) the length of detention prior to execution 2) conditions on death row 3) Soering’s age and mental condition 4) the possibility of Soering’s extradition to Germany as an alternative. The Court ultimately held that the Home Secretary’s decision to extradite Soering was in violation of Article 3 (art. 3) of the Convention.

The Court then considered the applicant’s allegation of Article 6 § 3 (c) violations.  It held that while there were circumstances where the fugitive would suffer or risk suffering a flagrant denial of a fair trial in the requesting country so that Article 6 would be violated, these facts did not apply in Soering’s case.

The Court finally addressed Soering’s Article 13 allegation, in which he claimed that he had no effective remedy under United Kingdom law with respect to his Article 3(art. 3) complaint.  While the Court acknowledged that Soering’s application for judicial review was met with an unfavorable response, they held that the effectiveness of the remedy, for the purposes of Article 13 (art. 13), did not depend on the certainty of a favorable outcome for Soering.  Thus, the Court found no Article 6 § 3 (c) violation.

“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’.” Para. 98.

“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).” Para. 103.