- Torture — Human rights remedies — Capital punishment — Extradition and mutual assistance
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
1 In Soering v United Kingdom (‘Soering Case’), the European Court of Human Rights (ECtHR) ruled for the first time that extradition could raise the responsibility of the requested State under Art. 3 Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’; European Convention for the Protection of Human Rights and Fundamental Freedoms ). The case also set standards for the assessment of the death penalty and the death row phenomenon under the ECHR.
2 The case involved a German national, Jens Soering, who was accused in the State of Virginia on two counts of capital murder which he and his girlfriend had allegedly committed in 1985 when the applicant was 18 years old. They left the United States of America (‘US’) and were arrested for cheque fraud in the United Kingdom (‘UK’). The US requested their extradition on 11 August 1986 under the terms of the extradition treaty between the UK and the US. Germany also requested the applicant’s extradition on 11 March 1987.
C. Decision of the Court
1. Applicability of Art. 3 ECHR in Extradition Cases
3 As can be derived from Art. 5 (1) (f) ECHR, the convention does not grant a right not to be extradited. However, the ECtHR unanimously endorsed the established case law of the European Commission on Human Rights (‘ECommHR’) by which extradition of an individual to a State where he would be likely to be subjected to torture or inhuman or degrading treatment engaged the responsibility of the requested State under Art.3 ECHR (Individuals in International Law; Torture, Prohibition of). Stressing the absolute nature of Art. 3 ECHR and the need to interpret the ECHR in a way that renders its safeguards practical and effective, the ECtHR held that the loss of control after extradition did not absolve the State from responsibility for foreseeable consequences of extradition suffered outside its jurisdiction (Human Rights, Treaties, Extraterritorial Application and Effects; Interpretation in International Law).
4 The ECtHR conceded that Art. 1 ECHR limited the territorial reach of the convention (Treaties, Territorial Application). Accordingly, it pointed out that the affirmation of responsibility of the respondent government did not involve adjudication on the treatment in the requesting State, which was not a party to the convention. Responsibility rather arose from the decision to expose an individual who is within the requested Contracting State’s jurisdiction to a real risk of inhuman or degrading treatment in another country by way of extradition.
5 This reasoning is in line with the principle of non-refoulement expressed in Art. 3 ECHR United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The United Nations Human Rights Committee in Kindler v Canada endorsed the applicability of human rights in extradition cases (Human Rights Committee).
6 While the ECtHR in the Loizidou Case invoked the Soering Case to prove that jurisdiction was not restricted to the national territory of the high contracting parties, it held in the Banković Case that the judgment did not imply an endorsement of an extraterritorial effect of the convention. The ECtHR refused to equate the selection of targets for air strikes with the decision to extradite an individual by underlining the exercise of complete legal authority over Soering during his detention in the UK. Moreover, while in the Soering Case, in order to define the limits of jurisdiction it relied on an objective assessment of the object and purpose of the convention (Treaties, Object and Purpose), in Banković v Belgium, it undertook an interpretation of the concept of jurisdiction which focused on the subjective-historical intent of the contracting parties.
2. Standard of Proof for Potential Violations
7 The ECtHR recognized that in order to guarantee the effectiveness of the convention system, notwithstanding the fact that no human rights violation had yet been accomplished, the decision to extradite a person which has not yet been executed fell within the scope of Art. 3 ECHR. The ECtHR established as a standard for its prognosis that there had to be substantial grounds for believing that the person concerned faced a real risk of being subjected to torture or inhuman or degrading treatment in the requesting country (International Courts and Tribunals, Evidence). Only if there was a real risk of the applicant being sentenced to death did the question arise whether the death penalty or the death row phenomenon constituted a violation of the convention.
8 The ECtHR took into account the circumstances of the crime and the fact that the Virginia prosecutors had uttered their intention to seek the death penalty. The assurances obtained from the Virginia prosecuting authority did not seem sufficient, as it had promised merely to inform the judge that the UK opposed imposition of the death penalty. Although the ECtHR did not consider imposition of the death penalty certain or even probable, it found that an evaluation of all relevant factors could not lead to the conclusion that the risk of the death penalty was eliminated, which indicates that the ECtHR did not set the threshold for the affirmation of a real risk very high. This is corroborated by the ECtHR’s introduction of the real risk standard which is less strict than the standard of serious fear used by the ECommHR in prior cases.
3. The Death Penalty under the Convention
9 The ECtHR stated that the death penalty per se was not in violation of the right to life under the convention (Life, Right to, International Protection), referring to the clear wording of Art. 2 (1) sentence 2 ECHR, which provided an explicit exception to the right to life for capital punishment. It held that the adoption of Protocol No 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty (‘Optional Protocol No 6’) in 1983 indicated that the Member States should only be obliged to abolish the death penalty when they had specifically chosen to be bound by the protocol. The States had opted for the traditional method of amendment of the convention, thus excluding amendment by means of changed State practice (Treaties, Amendment and Revision).
10 In order not to nullify the exception of Art. 2 ECHR, neither could the prohibition of torture under Art. 3 ECHR be interpreted as prohibiting the death penalty.
11 The concurring judge de Meyer argued that the death penalty itself constituted inhuman and degrading treatment and a violation of the right to life. He based his dynamic interpretation of the convention on the abolition of the death penalty in almost all Western Europe. Additionally, he held that notwithstanding the UK’s failure to ratify Optional Protocol No 6, since the UK had abolished the death penalty, it was not entitled to extradite a person who risked being executed in the requesting State. This position was endorsed by the Human Rights Committee in Judge v Canada.
12 The question whether the death penalty itself constituted a violation of the right to life or inhuman and degrading treatment was again touched upon in Öcalan v Turkey, where State practice had significantly evolved, but was not finally decided by the ECtHR.
4. The Death Row Phenomenon as Inhuman and Degrading Treatment
13 The death row phenomenon characterizes the long waiting period between imposition of a death sentence and execution and the stressful conditions associated with it. With a six to five majority, the ECommHR did not qualify the circumstances of the case as constituting a violation of Art. 3 ECHR. It held that the delays in the execution of the death penalty could largely be ascribed not to default of State authorities, but to the voluntary exercise of appeal rights designed to protect prisoners against arbitrary imposition of the death penalty, and did not consider the possibility of extradition to Germany a relevant factor.
14 In contrast, the ECtHR ruled that while capital punishment per se was not contrary to the convention, the circumstances surrounding it may give rise to a violation of Art. 3 ECHR. The ECtHR addressed four circumstances that could give rise to issues of inhuman treatment in this case. First it underlined the length of detention on death row which amounted to six to eight years in Virginia. In contrast to the ECommHR, the ECtHR stated that this delay could not be imputed to the accused since it was only natural for him to exploit all possible remedies (Human Rights, Remedies). Moreover, the ECtHR addressed the stressful penitentiary conditions and the personal circumstances of the applicant, namely his youth and his disturbed mental state at the time of the offence. Fourth, the ECtHR cited the competing extradition request from Germany, acceptance of which would allow establishing a fair balance between State interests and the interests of the applicant. Under these circumstances, the ECtHR found that an extradition would constitute degrading treatment under the terms of Art. 3 ECHR.
15 The focus on the various mitigating circumstances raised ambiguities whether the ECtHR felt that the death row phenomenon as such was contrary to Art. 3 ECHR or whether it had to be accompanied by aggravating circumstances. While the Human Rights Committee adopted the latter position in Kindler v Canada, the Privy Council in Pratt v Attorney General for Jamaica made clear that prolonged detention on death row as such constituted inhuman and degrading treatment under the Jamaican constitution, which contained a provision almost identical to Art. 3 ECHR.
16 The ECtHR underlined the need to balance individual rights and State interests. Due to the absolute nature of Art. 3 ECHR, this reference to State interests may not be equated to a possible restriction of the prohibition of torture. Rather, the ECtHR took into account State interests when defining the scope of Art. 3 ECHR. At the same time, it considered the protection against extradition by way of Art. 3 ECHR essential, ‘however heinous the crime allegedly committed’ (Soering Case para. 87). Accordingly, in Chahal v United Kingdom the ECtHR rejected a balancing of the risk of ill-treatment and State interests.
6. Applicability of Art. 6 ECHR in Case of Flagrant Denial of Justice
17 The ECtHR indicated a possible future application of Art. 6 ECHR in extradition cases. The applicant had argued before the ECommHR that there was an infringement of his fair trial rights if he was extradited to the US because the law of Virginia did not provide the free assistance of a lawyer (Fair Trial, Right to, International Protection). Both the ECommHR and the ECtHR found that there was no infringement. However, while the ECommHR unanimously rejected the applicability of Art. 6 ECHR because the UK could not be held responsible for the absence of legal aid under Virginia law, the ECtHR affirmed that in cases of flagrant denial of justice, an extradition may violate Art. 6 ECHR. This has been confirmed in the case of Mamatkulov v Turkey.
7. The Relationship of Obligations under the ECHR and Extradition Treaties
18 The Soering Case raised the question as to how a conflict between an obligation under an extradition treaty to extradite an individual and a converse obligation under the ECHR to refrain from extraditing the individual should be solved (Treaties, Conflicts between). The ECtHR did not accept the argument advanced by the UK that it was bound by the extradition treaty concluded with the US, without however explicitly addressing the question of the ranking in priority of the treaty obligations or undertaking an effort to harmonize them. Instead, it confined itself to examining whether there was a violation of the convention. Thus, the ECtHR in effect accorded primacy to the human rights norm over the extradition treaty and acknowledged a certain hierarchy of legal obligations that recognized the higher status of at least certain human rights norms.
19 The ECtHR conceded that human rights do not have priority in all extradition cases by stressing the particular importance of the prohibition of torture in this case and rejecting a general principle that the conditions awaiting an individual in the country of destination must be in full accord with each of the safeguards of the convention. However, it remained ambiguous as regards the question whether there is the need to balance in every case the State’s interest of criminal law enforcement and the interest to include individual rights in the extradition process, or rather whether only certain rights qualify as potential obstacles to extradition.
20 Apart from Arts 3 and 6 ECHR, the ECtHR has up to now recognized the potential relevance of Art. 2 ECHR, if the requested State has signed Optional Protocols Nos 6 and 8 (Cruz Varas v Sweden) in extradition or expulsion cases. Furthermore, a failure to comply with interim measures indicated by the ECtHR to retard extradition can give rise to a violation of Art. 34 ECHR (Mamatkulov and Askarov v Turkey; Interim [Provisional] Measures of Protection).
21 The Soering Case had a considerable impact on subsequent national and international decisions. It stands for the proposition that Contracting States have an obligation to ensure that their actions will not facilitate human rights violations by other States. Not only has the ECtHR recognized the relevance of other convention rights in extradition proceedings, but it has also expanded the applicability of Art. 3 ECHR to cases involving potential ill-treatment by non-State actors (Ahmed v Austria) and the lack of medical treatment for a lethal disease in the home State (D v United Kingdom). Expanding the scope of the ECHR into the formerly unfettered arena of extradition, the judgment represents an important contribution towards an increasing recognition of the applicability of human rights in extradition proceedings.
- T Meron ‘On a Hierarchy of International Human Rights’ (1986) 80 AJIL 1–23.
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- R Alleweldt ‘Protection against Expulsion under Article 3 of the European Convention on Human Rights’ (1993) 4 EJIL 360–76.
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- Ahmed v Austria (ECtHR) Reports 1996-VI 2195.
- Bankovic v Belgium (ECtHR) Reports 2001-XII 333.
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted on 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85.
- Convention for the Protection of Human Rights and Fundamental Freedoms (signed 4 November 1950, entered into force 3 September 1953) 213 UNTS 221.
- Cruz Varas v Sweden (ECtHR) Series A No 201.
- D v United Kingdom (ECtHR) Reports 1997-III 777.
- Judge v Canada Human Rights Committee (ICCPR) (2004) 11 IHRR 125.
- Kindler v Canada (1991) 5 Selected Decisions of the Human Rights Committee 113.
- Loizidou v Turkey (Preliminary Objections) (ECtHR) Series A No 310.
- Mamatkulov v Turkey (ECtHR, 4 February 2005).
- Öcalan v Turkey (ECtHR, 12 May 2005).
- Pratt v Attorney General for Jamaica United Kingdom Judicial Committee of the Privy Council (2 November 1993) (1993) 4 All ER 769.
- Soering v United Kingdom (ECtHR) Series A No 161.
- The Netherlands v Short Hooge Rad der Nederlanden [Supreme Court of the Netherlands] (30 March 1990) (1990) 29 ILM 1375.
- Vilvarajah v United Kingdom (ECtHR) Series A No 215.