Case Summary Of Soering V United Kingdom (1989) 11 EHRR 439

Introduction
Soering v United Kingdom (1989)1 concerns Articles 3, 6 and 13 of the European Convention on
Human Rights (ECHR) 1950 and the potential extradition to the USA by the UK of a West
German national to face trial in Virginia, USA on a murder charge. Soering argued that if he
were found guilty of murder and sentenced to death, that he would experience 'death row-
phenomenon' which would lead to the violation of his Convention rights.

Issues
The Soering case raises the issue of non-refoulement, which engages state responsibility by the
act of removal of an individual to a state where he or she will be exposed to a certain degree of
risk of having her or his human rights violated.2 The decision in Soering affirms the
extraterritorial applicability of human rights guarantees within the ECHR as well as the
absolution prohibition against torture under Article 3.

Facts
Jens Soering is a German national, who at the time of the alleged offence was a student at the
University of Virginia.3 He and his girlfriend were wanted in Bedford County, Virginia, USA for
the murder of his girlfriend's parents. The couple disappeared from Virginia in October 1985,
and were later arrested in England in April 1968 in connection with cheque fraud.4 Soering was
interviewed by Bedford County police in the UK, which led to his indictment on charges of
capital murder and non-capital murder. The USA commenced extradition proceedings with the
UK under the terms of the Extradition Treaty of 1972, between the USA and UK.5 Mr Soering
applied to the European Court on Human Rights (ECtHRs) alleging the breach of Article 3,
Article 6 and Article 13 ECHR.

The Decision Of The ECtHRs

Article 3 - Soering alleged that the decision of the secretary of state for the home department to
surrender him to the US would, if implemented give rise to a breach of Article 3 ECHR. Article
3 provides: that "No one shall be subjected to torture or to inhuman or degrading treatment or
punishment".6 The breach of Article 3 is linked to the treatment the applicant argued he would
receive if he were to be detained on death row in Virginia for an expected six to eight years.7 The
ECtHR accordingly found the UK to be in breach of Article 3.
Article 6 - Soering alleged that the lack of legal aid in Virginia and the failure of the English
Magistrates court to consider his psychiatric condition amounted to a breach of the right to a fair
trial. The ECtHR found they had no jurisdiction to consider this matter.8
Article 13 - Soering further argued that he had no effective remedy in the UK with respect to his
complaint under Article 3. The ECtHR found there to be no breach of Article 13; since Mr
Soering had the opportunity to bring judicial review proceedings at the appropriate time within
UK law.9

Analysis
The ECtHR in defining torture, inhuman or degrading treatment under Article 3 ECHR, argued
that ill-treatment must attain a minimum level of severity to fall within the scope of Article 3.
This depends upon the circumstances of the case and context of the treatment or punishment, the
manner and method of its execution, its duration and physical or mental effects.10 The Soering
doctrine is narrowly construed.11 Central to the ECtHRs reasoning was the 'serious and
irreparable nature of the alleged suffering'.12 Soering is part of the courts extensive jurisprudence
in support of the rights of prisoners.13 Furthermore, it first established the principle that a
Member State can be in breach of a Convention right merely by expelling an individual to a state
in which he or she would face a breach of a Convention right.14 The UK itself did not need to
carry out any acts of torture, inhuman or degrading treatment to be in breach of Article 3, they
merely need to place Soering at the 'real risk' of being subject to treatment in breach of Article 3.
The Soering decision effectively established a hard protection against extradition in Article 3
cases.15 This principle was later extended to violations of Article 6 (fair trial),16 Article 13 (lack
of effective remedy)17 and Protocol 4 (collective expulsions).18 In Vilvarjah and Others v the
United Kingdom,19 the ECtHR subsequently imposed certain limitations upon extradition,
requiring that 'a sufficiently clear causal link between the removal and any ill-treatment which
might have occurred'.
The Soering doctrine has proved particularly controversial in cases of suspected terrorism. In
Chahal v UK,20Karamjit Singh Chahal was a Sikh who illegally entered the UK in 1971. A
general amnesty in 1974 permitted him to stay in the UK. However, he was later arrested in
connection with a conspiracy to kill the Indian Prime Minister and a deportation order was made
by the UK on the grounds of national security under section 3(5) Immigration Act 1971. Chahal
took his case to the ECtHR, alleging a real risk of a breach of his Article 3 rights if he was
deported. The majority of the ECtHR affirmed the absolute prohibition of torture, finding that if
there is a substantial risk in deportation cases that there would be a breach of Article 3, the
deportee's status could not be a material consideration.21 It has been suggested that the Chahal
decision sometimes makes it difficult for governments to deal with suspected
terrorists.22 However, the decision was later affirmed by the ECtHR in Saadi v Italy,23 despite an
argument by the UK that Chahal had failed to give proper weight to the right to life under Article
2 ECHR. The ECtHR once again reaffirmed the absolute nature of the prohibition on torture in
rejecting these arguments.
The ECtHR has noted the absolute prohibition of Article 3 and distinguished this from cases in
which other Convention rights might be violated upon expulsion.24 Z and T v UK, 25concerned
the case of two Pakistani individuals who argued that upon the return to Pakistan, would not be
'able to live freely and openly as Christians', arguing a potential breach of their freedom of to
practice a religion under Article 9. In rejecting their application, the ECtHR held that 'such
compelling considertaion [as absoluteness]' does not automatically apply under the other
provisions of this Convention.26
Facts:
The case originated with Application No. 14038/88 filed by Mr Jens Soering, a German national,
against the UK on 8 July 1988. It was brought before the Court on 25 January 1989 by the
European Commission of Human Rights (“the Commission”) on 25 January 1989, by UK on 30
January 1989, and by Germany on 3 February 1989. The object of the request and governmental
applications was to obtain a decision 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 ECHR. On 26 January 1989
the Chamber was constituted and then relinquished jurisdiction in favour of the plenary Court
under Rule 50.

The applicant had been a student at the University of Virginia together with his girlfriend,
Elizabeth Haysom, a Canadian national. Both were arrested for cheque fraud in England in April
1986 after having disappeared from Virginia in October 1985. When interviewed in England by
a police investigator from Bedford County, Virginia, the applicant admitted to stabbing and
killing Miss Haysom’s parents in Bedford County in March 1985 after the parents told him they
would do anything to prevent his and Miss Haysom’s relationship. The applicant was 18 years
old at the time of the homicides.

The applicant was later indicted in abstentia by the Bedford County Circuit Court on charges
alleging capital murder of the Haysoms. On 11 August 1986 the US requested the applicant’s
and Miss Haysom’s extradition under the Extradition Treaty of 1972 between the US and the
UK. . On 29 October 1986 the British Embassy sent a request to the US seeking assurance that in
the event of the applicant being surrendered and convicted for the crimes, the death penalty
would not be imposed or carried out.

In light of the applicant’s nationality the German Government also requested his extradition
under the Extradition Treaty of 1872 between Germany and the UK. Whilst admissions by the
applicant to a German prosecutor had been made the UK informed Germany that it had
concluded that the case should continue in the US and it had obtained assurances by the Attorney
for Bedford County that a representation would be made that it was the wish of the UK to not
impose or carry out the death penalty, and the Federal Government of the United States sought
assurances from Virginia that this would be honoured. However, during the course of the
proceedings the Virginia authorities informed the UK that the Attorney for Bedford County did
intend to seek the death penalty.

On 16 June 1987 committal proceedings took place before the Chief Stipendiary Magistrate of
the Bow Street Magistrates’ Court. The Magistrate found evidence in a psychiatrist report that
the applicant was suffering from an abnormality of the mind at the time of the homicides
irrelevant to any issue he had to decide and committed the applicant to await the Secretary of
State’s order for extradition to the US. The applicant was denied a writ of habeas corpus in
respect of his committal by a Divisional Court and refused leave for judicial review and leave for
appeal by the House of Lords. He claimed that the assurances from the US were so worthless that
no reasonable Secretary of State could regard them as satisfactory under Article IV of the
Extradition Treaty. Interim measures were given by the Commission and then the Court,
preventing the applicant’s extradition.

Decision & Reasoning:

The Court examined the UK Extradition Acts. 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. While it was the Secretary of State’s practice to
accept an assurance from the prosecuting authorities of the relevant American State that it was
the wish of the UK that the death penalty not be imposed or carried out, the Court noted that
there has never been a case in which the effectiveness of such a written undertaking has been
tested.

The Court examined the relevant domestic criminal law in Virginia. It also examined the prison
conditions in Mecklenburg Correctional Centre.

The Court examined relevant German law and practice. It noted that where a death sentence
could be carried out, the German Government will only grant extradition if there is an
unequivocal assurance by the requesting State that the death penalty will not be imposed or
carried out.

The Court then turned to the alleged breaches of the ECHR, as claimed by the applicant and
denied by the UK.

1. Alleged Breach of Article 3

The alleged breach of the prohibition on torture or inhuman or degrading treatment or

punishment was derived from the applicant’s exposure to the so-called “death row phenomenon”
which may be described as the combination of circumstances which the applicant would be
exposed to if, after having been extradited to Virginia, he were sentenced to death. The Court
first explained that the Convention does not contain a right prohibiting extradition (see Article 5
§ 1 (f)). However, if extradition has consequences adversely affecting the enjoyment of a
Convention right, it may, assuming they are not too remote, attract the obligations of a
Contracting State. That the UK has no power over Virginia authorities did not absolve it from
responsibility under Art. 3 for all and any foreseeable consequences of extradition. Further, Art.
3 has no provision for exceptions or derogations. It would be incompatible with the underlying
values of the Convention if a Contracting State could knowingly surrender a fugitive to another
State where there were substantial grounds for believing that he would be in danger of being
subjected to torture or face a real risk of exposure to inhuman or degrading treatment or
punishment in the receiving State. Therefore a decision by a Contracting State to extradite may
give rise to an issue under Art. 3.

Upon application to the current case, the Court determined that the likelihood of the feared
exposure to the “death row phenomenon” was sufficient to bring Art.3 into play.

The Court explained that, as established in its case law, ill-treatment and punishment must attain
a minimum level of severity to fall within the scope of Art. 3. In order for a punishment or
treatment 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. While capital punishment is permitted under certain conditions by
Art. 2 § 1 ECHR, the Court noted that it must interpret the Convention in light of present-day
conditions, in which, de facto, the death penalty no longer exists in time of peace in the
Contracting States, and as is reflected in Protocol No. 6. With these marked changes, the death
penalty has per se been brought within the prohibition of ill-treatment under Art. 3. However,
because the Convention is to be read as a whole and its provisions in harmony with each other,
Art. 3 cannot be interpreted as generally prohibiting the death penalty. Still, the circumstances
relating to a death sentence can give rise to an Art. 3 issue.

The Court then examined the particular circumstances in the case and determined that a
condemned prisoner has to endure many years of anguish and mounting tension of living because
of the complex post-sentence procedures in Virginia. Second, the conditions in the severe special
regime on death row also factor into an Art. 3 issue. Third, the applicant’s youth at the time of
the offense and his then mental state tend to bring the treatment within the terms of Art. 3. Lastly
was the possibility of his extradition to Germany, removing both the danger of a fugitive
criminal going unpunished and the risk of intense suffering on death row.

In conclusion, the Court determined that the Secretary of State’s decision to extradite the
applicant to the US would, if implemented, give rise to a breach of Art. 3.

2. Alleged breach of Article 6

The Court next considered the applicant’s submission that because of the absence of legal aid in
Virginia to fund collateral challenges before Federal courts, he would not be able to secure his
legal representation as required by Article 6 § 3 (c). The Court found that the facts of the present
case did not disclose a risk of suffering a flagrant denial of a fair trial.

The Court then considered the applicant’s allegation that the refusal of the English Magistrates
court to consider evidence as to his psychiatric condition violated Art. 6 (1) and (3), but because
this complaint was not pleaded before the Commission, the Court had no jurisdiction to entertain
the matter.

3. Alleged breach of Article 13

The Court lastly considered the applicant’s allegation of a breach of Art. 13 ECHR because he
claimed he had no effective remedy in the UK in respect of his complaint under Art. 3. The
Court came to the conclusion that the requirements of Art. 13 were not violated. In coming to
this conclusion, the Court first examined the judicial review proceedings. It was satisfied that the
English courts can review the “reasonableness” of an extradition decision (the test of
“irrationality” on the basis of the so-called “Wednesbury principles”) in light of the kind of
factors relied on by the applicant before the Convention institutions in the context of Art. 3. The
applicant’s claim failed before the House of Lords because it was premature. Furthermore, his
arguments were not the same as those relied on when justifying his complaint under Art. 3. The
English courts’ lack of jurisdiction to grant interim injunctions against the Crown did not detract
from the effectiveness of judicial review, and as such, the Court concluded that the applicant did
have an effective remedy available to him under English law.
4. Application of Article 50

The Court found that its finding regarding Art. 3 itself amounts to adequate just satisfaction for
the purposes of Art. 50. The Court did find that in equity the applicant should recover his costs
and expenses in full, as he was successful on the bulk of the argument, focused on the complaint
under Art. 3.

Outcome:
Application granted.

Observations/Comments:
This case expanded a Contracting State’s responsibility so that it could be liable for a breach of
the Convention for foreseeable consequences or risk that an individual would face in a third
State, even if the potential breach (here, ill treatment or punishment) was outside of its control
and it had general assurances that no breach would occur.

This rationale would later be found to apply equally to deportation cases, where other articles of
the Convention, such as Article 6, may apply. (See ECtHR - Othman (Abu Qatada) v. The United
Kingdom, Appl. No. 8139/09, 17 January 2012.)