Monday, 19 November 2012

The Curious Case of "Soering V UK"


Case Note on Extradition Law

Soering v UK A/161 (1989) 11 E.H.R.R 439
 
 
In light of the current cases that demand for an extradition of suspected terrorists, it is important to refer to the law that prevents these men from being extradited to the countries who want them- what is it in our common law that stops the extraditions to countries whose penal systems feature torture, degrading treatment or the death penalty.
Soering v UK is still registered as a positive or neutral decision under Westlaw which means that the case is still current law and will be used in arguments against any extradition.
In this blog, I am going to examine 1 element gleaned from this case- why Article 3 (the right not to be tortured or suffer inhumane or degrading treatment) of the European Convention on Human Rights(ECHR)  prevented the UK from extraditing Soering to the USA to face charges of capital murder.

Facts of the Case
Jans Soering was a German national living in Virginia (USA) who, in 1985, at the age of 18 with his girlfriend, killed her parents. It was reported that ‘their deaths were the result of multiple and massive stab and slash wounds to the neck, throat and body’. It is not under dispute whether Soering killed the parents however it was only in 1986 when he was arrested in the UK for a cheque fraud that the issue became real. 

The Problem:
As we can see above, there were 3 countries with a stake in the claim for the extradition of Soering; the first was the UK because it was where he was found as a fugitive (however he could not be tried in the UK), secondly; Germany because he was a native and third: the Commonwealth State of Virginia within the USA.
Neither Germany or the UK have the death penalty as it has been abolished by all EU members however the state of Virginia still used the death penalty at the time of the case. In order to escape death if he was extradited, Soering used up all his appeals within the UK and brought a claim against the UK to the European Commission of Human Rights to prevent his being extradited.
He argued that by extraditing him, they would be in breach of Article 3, the UK argued that they would not be.
 
The Argument:
 
In the UK, Courts deciding  whether Soering should be extradited held that the death penalty was permissable as an exception under Article 2 (right to life) of ECHR which would mean that Soering would be returned to Virginia to face punishment. However Soering chose to base his arguments instead partly around Article 3. He argued that if he were to be extradited to Virginia, the UK would be in breach of Article 3: the prohibition of torture or inhumane or degrading treatment because he would be forced to live on death row. The case referred to this as the "death row phenomena."
 
Would the "Death Row Phenomena" Breach Article 3 ECHR?
 
The Judges first examined what was meant by the death row phenomena... they deciphered what would be the conditions under which Soering would be kept whilst he was on death row:
  1. The size of the death-row inmates' cell is 3m x 2.2m
  2. 6-7 hours recreation (seasonal)
  3. Permission to leave the cell on occassions such as to recieve visitors.
  4. A death row inmate is moved to the Death House 15 days before he is due to be executed.
  5. Whilst in the Death House, an inmate is isolated and has no light in his cell- there is only light outside in the corridor.
  6. The cell is next to the Death Chamber itself.
  7.  
The Applicant (Soering) adduced that for these reasons a death row inmate would be exposed to extreme stress, psychological deterioration and an increased risk of homosexual abuse and physical attack.
Ergo, this would be a breach of Article 3 which states the "absolute prohibition on torture and inhuman and degrading treatment or punishment"
In this instance, Soering argued he would be suffering degrading punishment owing to the conditions he would be kept in.
 
What If Virginia Swore Not to Execute Him?
 
In 1986 the British Embassy in Washington wrote to Virginia:
 
"Because the death penalty has been abolished in Great Britain, the Embassy has been instructed to seek an assurance 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 possile on Constitutional grounds for the US Government to give such an assurance, the UK Authorities ask that the US Government undertake to recommend to the appropriate authorities that the death penalty should not be imposed, or if imposed, not to be executed."
 
With this, the UK argued against Soering that the assurance recieved from the US must at least significantly reduce the factor of Capital Punishment being imposed or carried out and therefore, if he was extradited, he would probably not face the death row phenomena.  However Soering retaliated that the representations (above) concerning the wishes of a foreign government would not be admissable as a matter of law and would not be a concrete promise that he would not be executed.
 
The European Commission's Decision:
 
Unfortunately for Soering, a 6 votes to 5 majority held that the extradition would not result in treatment that would lead to a breach of Article 3 in this particular case. However it did state that "in cases where it is certain that the person will be subjected to torture or inhumane treatment the deportation or extradition, in itself, under circumstances constitute inhuman treatment"
 
What Did He Do Next?
 
Soering anticipated that this would be the decision of the Commission and so instead began to file a claim with the European Court of Human Rights in 1989. The Court  actually disregarded the decision of the Commission and decided in favour of Soering.
Firstly, In the Courts view, having regard to the very long period of time spent on death row in such extreme conditions with the ever-mounting anguish of awaiting execution, and, to the personal circumstances of the applicant, especially his age and mental state, the extradition to the US would expose him to a real risk of treatment going beyond the threshold of Article 3.
Secondly, the Court did not give any assurance from Virginia much weight which suggested that they did not trust the promise that they would not execute him enough to not see it is a risk high enough to merit a breach.
 
Why is Soering v UK So Important to Current Law?
 
1) It widens the responsibility of the UK to other states- they must now look into what might happen to the applicant after they have been extradited or deported and must try and recieve assurances against any inhuman treatment.
2) The Convention on Human Rights effectively overrided any agreements between member states and non-member states e.g UK and the USA or Germany and the USA.
3) It makes it difficult or even impossible for the USA to request extradition in cases such as the above.
 
 
Links to Human-Rights Groups :
 
 
     
 
 

 
 
 
 
 
 
 
 

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