Drug Abuse

Extradition, Capital Punisment and Article 3 Convention for the Protection of Human Rights and Fundamental Freedoms (Treaty of Rome)

European Court of Human Rights, July 7 1989: The Soering Case.

The facts

Jens Soering, detained in an English prison, is accused of killing the parents of his girlfriend in their home in Virginia (USA) in 1985. The government of the United States of America requests his extradition on the 31st of July 1986 in order for him to be tried for the accused (capital murder) in Virginia. The government of the German Federal Republic makes a similar request the 11th of March 1987. The 3rd of August 1988 the British Secretary of State for the Home Department signs the order to extradite Soering to the American authorities. In the meanwhile Soering lodged a complaint with the Commission, implying that his extradition to the United States is in violation of Article 3, 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The President of the Commission and thereupon the Commission itself made recommendations, in accordance with section 36 House Rules, to the United Kingdom not to extradite Soering for the time being. After the admission of accessibility (November 10, 1988) the Commissions adopts its report, in which is concluded that Article 3 and 6 CPHRFF are not but that Section 13 CPHRFF is indeed violated. Shortly thereafter the case is submitted to the Court, by the Commission and the governments of the United Kingdom and the Federal German Republic, that makes the recommendation (based on Section 36 of its Procedural Rules) to the United Kingdom on the 26th of January 1989 not to extradite Soering "pending the outcome of the proceedings before the Court".
The Court pronounces judgement on the 7th of July 1989. (ed, mario lap)

Decision:

AS TO THE LAW

I. ALLEGED BREACH OF SECTION 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 of the Convention, which provides:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. Applicability of Article 3 in cases of extradition

81. The alleged breach derives from the applicant's exposure to the socalled "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 caselaw that a person's deportation or extradition may give rise to an issue under Article 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".

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 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 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 should not be interpreted so as to impose responsibility on a Contracting State for acts which occur outside its jurisdiction. In particular, in their submission, extradition does not involve the responsibility of the extraditing State for inhuman or degrading treatment or punishment which the extradited person may suffer outside the State's jurisdiction. To begin with, they maintained, it would be straining the language of Article 3 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 examination of alien systems of law and of conditions in foreign States; the practice of national courts and the international community cannot reasonably be invoked to support it; it causes a serious risk of harm in the Contracting State which is obliged to harbor 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 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 t½- ;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 õ I(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 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 I of the Convention, which provides that "the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I", sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to "securing" ("reconnaitre" in the French text) the listed rights and freedoms to persons within its own "jurisdiction". Further, the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States. Article I cannot be read as justifying a general principle to the effect that notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention. Indeed, as the United Kingdom Government stressed, the beneficial purpose of extradition in preventing fugitive offenders from evading justice cannot be ignored in determining the scope of application of the Convention and of Article 3 in particular.

In the instant case it is common ground that the United Kingdom has no power over the practices and arrangements of the Virginia authorities which are the subject of the applicant's complaints. It is also true that in other international instruments cited by the United Kingdom Government - for example the 1951 United Nations Convention relating to the Status of Refugees (Article 33), the 1957 European Convention on Extradition (Article 11) and the 1984 United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Article 3) - the problems of removing a person to another jurisdiction where unwanted consequences may follow are addressed expressly and specifically.
These considerations cannot, however, absolve the Contracting Parties from responsibility under Article 3 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, õ 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, õ 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, õ 53).

88. Article 3 makes no provision for exceptions and no derqgation from it permissible under Article 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 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 recognized 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. That the abhorrence of torture has such implications is recognized in Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that "no State Party shall ... extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture". The fact that a specialized 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 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, would plainly be contrary to the spirit and intendment of the Article, and in the Court's view this inherent obligation not to extradite also extends to cases it 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 the Article.

89. What amounts to "inhuman or degrading treatment or Punishment" depends on all the circumstances of the case (see paragraph 100 below). Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbor 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 by reason of its foreseeable consequences in the requesting country, a departure form 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 (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, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 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 q 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 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); this decision, albeit as yet not implemented, directly affects him. It therefore has to be determined on the above principles whether the foreseeable consequences of Mr Soering's return to the United States are such as to attract the application of Article 3. This inquiry must concentrate firstly on whether Mr Soering runs a real risk of being sentenced to death in Virginia, since the source of the alleged inhuman and degrading treatment or punishment, namely the "death row phenomenon", lies in the imposition of the death penalty. Only in the event of an affirmative answer to this question need the Court examine whether exposure to the "death row phenomenon" in the circumstances of the applicant's case would involve treatment or punishment incompatible with Article 3.

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 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), the applicant has not acknowledged his guilt of capital murder as such.
Secondly, only a prima facie case has so far been made out against him. In particular, in the United Kingdom Government's view the psychiatric evidence (see paragraph 21) is equivocal as to whether Mr Soering was suffering from a disease of the mind sufficient to amount to a defense of insanity under Virginian law (as to which, see paragraph 50).
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). The United Kingdom Government referred to the presence of important mitigating factors, such as the applicant's age and mental condition at he time of commission of the offense 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).
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).
At the public hearing the Attorney General nevertheless made clear his Government's understanding that if Mr Soering were extradited to the United States there was "some risk", which was "more than merely negligible", that the death penalty would be imposed.

94. As the applicant himself pointed out, he has made to American and British police officers and to two psychiatrists admissions of his participation in the killings of the Haysom parents, although he appeared to retract those admissions somewhat when questioned by the German prosecutor (see paragraphs 13, 16 and 21). It is not for the European Court to usurp the function of the Virginia Courts by ruling that a defense 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). 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). In this connection, the horrible and brutal circumstances of the killings (see paragraph 12) 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).
Admittedly, taken on their own the mitigating factors do reduce the likelihood of the death sentence being imposed. No less than four of the Aye facts in mitigation expressly mentioned in the Code of Virginia could arguably apply to Mr Soering's case. These are a defendant's lack of any 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 defendant's age (see paragraph 45).

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 Commonwealth's 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 offense 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). The Court notes, like Lord Justice Lloyd in the Divisional Court (see paragraph 22), 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 will not be carried out" (see paragraph 36). However the offence charged, being a State and not a Federal offence, comes within the juridiction of the Commonwealth of Virginia; it appears as a consequence that no direction could or can be given to the Commonwealth's 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 matter of Policy, promise that he will later exercise his executive power to commute 3 death penalty (see paragraphs 58-60 and 69).
This being so, Mr Updike 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 Parhament in 987 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 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). 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 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), 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 indepent exercise of his discretion the Commonwealth's 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). lf 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 likelyhood of the feared exposure of the applicant to the "death row phenomenon" has been shown to be such as to bring Article 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

(a) General considerations

100. As is established in the Court's case-law, ill-treatment, including punishment, must attain a minimum level of seyerity if it is to fall within the scope of Article 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, õ 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 abovementioned Ireland v. 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 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 person's mental anguish of anticipating the violence he is to have inflicted on him.

101. Capital punishment is permitted under certain conditions bY Article 2 õ I of the Convention, which reads:
"Everyone's 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. 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 or Article 3. On the other hand, Amnesty International in their written comments (see paragraph 8) 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.

102. Certainly, "the Convention is a living instrument which ... must be interpreted . 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, "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 Tyler judgment, Series A no. 26, pp. 15-16, õ 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 offenses, 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 to words of Amnesty International, is reflected in Protocol No. 6 to the Convention, which provides for the abolition of the death penalty in time of peace. Protocol No. 6 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 Organization; 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 must be determined on the principles governing the interpretation of the Convention.

103. The Convention is to be read as a whole and Article 3 should therefore be construed in harmony with the provisions of Article 2 (see, mutates mutandis, the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 31, õ 68). On this basis Article 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 õ 1.
Subsequent practice in national penal policy, in the form of a generalized abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under Article 2 õ I and hence to remove a textual limit on the scope for evolutive interpretation of Article 3. However, Protocol No. 6, 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 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. 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 condition 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. 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 State's decision to return him to the United States, namely the "death row phenomenon", cumulatively constitute such serious treatment that his extradition would be contrary to Article 3. He cited in particular the delays the appeal and review procedures following a death sentence, psychological trauma the fact so he said, that he judge or jury in determining sentence is not obliged to take into account the defendant's age and mental state at the time of the offense; 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 color and nationality; and 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 State's 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. On the other hand, the conclusion expressed by the Commission was to the degree of severity contemplated by Article 3 would not be attained.
The United Kingdom Government shared this opinion. In particular, they disputed many of the applicant's 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). This length of time awaiting death is, as the Commission and the United Kingdom Government noted, in a sense largely of the prisoner's own making in that he takes advantage of all avenues of appeal which are offered to him by Virginia law. The automatic appeal of the Supreme Court of Virginia normally takes no more than six months (see paragraph 52). 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). 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 the conditions in Mecklenburg Correctional Center, where the applicant could expect to be held if sentenced to death, the Court bases itself 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).
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 applicant's 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).
Unlike Article 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 offense. Whether or not such a prohibition be inherent in the brief and general language of Article 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 compatability with Article 3 of measures connected with a death sentence.
It is in line with the Court's case-law (as summarized above at paragraph 100) to treat disturbed mental health as having the same effect for the application of Article 3.

109. Virginia law, as the United Kingdom Government and the Commission emphasized, 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 44-46 and 50-51). Additionally, indigent capital murder defendants are entitled to the appointment of a qualified mental health expert to assist in the preparation of their submissions at the separate sentencing proceedings (see paragraph 51). 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 sentencer's discretion (see paragraph 48). They do not however remove the relevance of age and mental condition in relation to he acceptability, under Article 31 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 applicant's 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.

(IV) Possibility of extradition to the Federal Republic of Cermany

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), where the death penalty has been abolished under the Constitution (see paragraph 72), 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 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

© 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. 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).
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 the real risk of treatment going beyond the threshold set by Article 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 State's decision to extradite the applicant to the United States would, if implemented, give rise to a breach of Article 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 applicant's surrender to the United States authorides in accord with the interim measures indicated by the Convention institutions and second]y by themse]ves referring the case to the Court for a judicial ruling (see paragraphs ], 4, 24 and 77).

II. ALLEGED BREACH OF ARTICLE 6

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), on his return to the United States he would not be able to secure his legal representation as required by Article 6 ©, which reads:
"Everyone charged with a criminal offence has the following minimum rights:
. . .
(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©. The United Kingdom Government concurred with this analysis and, in the alternative, submitted that the applicant's allegations were ill-founded.

113. The right to a fair trial in criminal proceedings, as embodied in Article 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, õ 32). The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision sn 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.
Accoldingly, no issue arises under Article 6 & 3© 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) violated paragraphs I and 3(d) of Article 6, 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 and limited to the Secretary of State's ultimate decision to extradite to the United States. He did not formulate any grievances, whether under Article 6, Article 3 or Article 13, regarding the scope or conduct of the Magistrates' Court proceedings as such. This being so, the new allegation of a breach of Article 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 Commission's decision on admissibility (see, inter alia, the Schiesser judgment of 4 December 1979, Series A no. 34, p. 17, õ 41, and the Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 23, õ 48).
Accordingly, the Court has no jurisdiction to entertain the matter.

III. ALLEGED BREACH OF ARTICLE 13

116. Finally, the applicant alleged a breach of Article 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. The majority of the Commission arrived at the same conclusion. The United Kingdom Government however disagreed, arguing that Article 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 Court's finding regarding Article 3 (see paragraph 111 above), the applicant's claim under that Article cannot be regarded either as incompatible with the provisions of the Convention or as not "arguable" on its merits (see, islter alia, the Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, õ 52).
The United Kingdom Government contended, however, that Article 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 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)

119. The Court will commence its examination with iudicial review proceedings since they constitute the principal means for ( lenging a decision to extradite once it has been taken.
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. 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 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, õ 52). The effect of Article 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, õ 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). 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.

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). 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 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 quality of the treatment awaiting Mr ,ering 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). The effectiveness of the remedy, for the purposes of Article 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, õ 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.
There is accordingly no breach of Article 13.

IV. APPLICATION OF ARTICLE 50

(......)

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that, in the event of the Secretary of State's decision to extradite the applicant to the United States of America being implemented, there would be a violation of Article 3;

2. Holds that, in the same event, there would be no violation of Article 6 õ 3©

3. Holds that it has no jurisdiction to entertain the complaint under Article 6 §§1 and 3(d);

4. Holds that there is no violation of Article 13;

5. Holds that the United Kingdom is to pay to the applicant, in respect to legal costs and expenses, the sum of œ 26,752.80 (twenty-six thousand seven hundred and fifty-two pounds sterling and eighty pence) and....