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Soering v.

United Kingdom
European Court of Human Rights
7th July 1989

Steven H.J. Kamminga


3137414
s.h.j.kamminga@students.uu.nl
Comparative Human Rights
Tutorial group VI
Teacher: mw. Mr. H.M.A.E. van Ooijen
Universiteit Utrecht

Words: 3508
Outline
I. Introduction 3
II. Summary of the facts 4
III. Definition of the legal problem 4
IV. Summary of the findings in preceding procedures 5
V. Opinion of the Court on the alleged breach of Article 3 ECHR 6
VI. Implication and implementation 9
VII. Concluding remarks 11
VIII. Bibliography 12

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I. Introduction
Forty-seven countries have signed the European Convention on Human Rights1. This means
nearly 75 percent of all countries in the world are not a party to this Convention. In an
increasingly interconnected world where distance has diminished with the rise of cars, airplanes
and the Internet, people no longer spend their entire lives in their own country, but increasingly
travel to far destinations in search for a better life, job or simply for an exotic holiday. Because of
this they find themselves being subject to different rights and laws; a European citizen can't
always count on the protection of their Human Rights as the European Convention guarantees
them in their homestate. A question closely associated with this is to what extent can someone
count on the European Convention to protect their Human Rights when he falls under the
jurisdiction of a State party to the Convention that wishes to extradite him to a country outside
the cover offered by the European Convention.
This is essentially the case of Mr.Soering2. He asked of the European Court of Human Rights3
to decide whether it was lawful for a State to extradite him to a country outside the cover of the
European Convention, where his right not to be tortured or be subjected to inhuman or degrading
treatment might be violated. This legal study will focus on this particular research question:

Did the decision of the Court in the case of Soering v. United Kingdom widen the scope of article
3 of the European Convention on Human Rights and if so, in what way?

It is a fascinating question because, if the Court would accept Mr. Soerings argumentation, it
would extract an implication from an Article of the European Convention not explicitly outlined
in the text of the Convention. To answer this question I will consider a number of subquestions:
 What are the relevant facts in the case of Mr. Soering v. United Kingdom?
 What is the central legal problem in the case of Mr. Soering v. United Kingdom?
 What were the findings of the different Courts in earlier (national) procedures?
 What was the ruling of the European Court of Human Rights in this case?
 What is the meaning of this case for international law and case-law?
1
European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted on 4 November
1950 by the Council of Europe [hereinafter ECHR].
2
Case of Soering v. the United Kingdom (Application no. 14038/88), European Court of Human Rights. Judgment
July 7, 1989 [hereinafter Soering case]
3
Hereinafter “the Court”.

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After these questions have been answered, I hope to provide a summarizing conclusion to the
main research question of this paper in the final paragraph of concluding remarks.

II. Summary of the facts


The case involves the West-German national Mr. Jens Soering. Mr. Soering was suspected of
killing the parents of his Canadian girlfriend Ms. Elizabeth Haysom in Bedford County, Virginia
in 1985. According to Mr. Soering, the parents of his girlfriend opposed their relationship,
therefore the two made plans to kill them4. The following year they were indicted by a local
Virginia court for the alleged murder of the parents, but by then Mr. Soering and Ms. Haysom
had left the United States and travelled to England. There, Mr. Soering was arrested and later
imprisoned for cheque fraud. The Government of the United States of America requested on
behalf of the authorities in Virginia the extradition of Mr. Soering for the murder of the Haysom
parents5. The Government of United Kingdom also received an extradition request for Mr.
Soering from the Federal Republic of Germany, based on the fact that Mr. Soering was a West-
German national6.
The British Secretary of State then sought reassurances from the authorities in Virginia
that should Mr. Soering be extradited to the United States and convicted of capital murder, the
death penalty would not be carried out or at the least be given the opportunity to recommend to
the judge that the death penalty should not be imposed7. The Government of the United Kingdom
decided to allow the extradition of Mr. Soering to the United States of America, preferring this to
an extradition to the Federal Republic of Germany8.

III. Definition of the legal problem


Mr. Soering brought a number of issues before the European Court of Human Rights. Foremost,
he claimed that his extradition to the United States of America would subject him to a treatment
that was inhuman and degrading and therefore would constitute a violation of Article 3 of the
European Convention of Human Rights9. This specific article concerns the prohibition of torture

4
Soering case at para 11-13.
5
Ibid, at para 14.
6
Ibid, at para 16.
7
Ibid, at para 20.
8
Ibid, at para 17.
9
Ibid, at para 80, 81.

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and inhuman or degrading treatment10. Furthermore, Mr. Soering claimed that his extradition to
the United States would constitute a violation of Article 6, paragraph 3 of the ECHR11 and a
breach of Article 1312. For this paper we will focus on the alleged violation of Article 3 of the
ECHR.
Mr. Soering claimed that his death sentence might fall under the definition of torture or
inhuman or degrading treatment, and if nothing else the process that comes along with it would:
the long wait for execution, the conditions in the prison and physical and mental attacks. The
legal problem for the Court to solve was whether the death sentence and the so called „death row
phenomenon‟ indeed do fall under the definition of torture or inhuman and degrading treatment
and if so, whether the extradition of Mr. Soering from the United Kingdom to the United States
would give rise to a violation of Article 3 of the ECHR. The crux of the problem is the fact that
the death sentence and „death row phenomenon‟ would not occur within the jurisdiction of a state
which is a party to the European Convention, in this case the United Kingdom. These acts would
be performed in Virginia, in the United States of America. The legal problem needs to be
specified then; the Court needs to consider whether Article 3 of the European Convention on
Human Rights "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 States13."

IV. A summary of the findings in preceding procedures


Before bringing his case to the European Court of Human Rights, Mr. Soering brought his case
before three British judicial institutions. In the following paragraph, I will briefly summarize Mr.
Soerings argument and the judgments of the court.
The case was first brought before the Magistrates' Court - the Government of the United
States provided evidence Mr. Soering had indeed killed the Haysom parents in Virginia. Mr.
Soering brought before the court evidence of a psychiatric report, stating that he was at the time
of the murder immature, inexperienced and "had lost his personal identity in a symbiotic
relationship with his girlfriend14." The Chief Magistrate decided that this was not relevant to any

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Article 3 of the ECHR states “No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
11
Article 6 of the ECHR concerns the right to a fair trial.
12
Article 13 of the ECHR concerns the right to an effective remedy.
13
Soering case at para 82.
14
Ibid, at para 21.

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issue he had to decide on, and ordered Mr. Soering to wait for the decision of the British
Secretary of State on his extradition15.
Mr. Soering then applied to the Divisional Court on two issues: a writ of habeas corpus
and for leave to apply for judicial review. Both applications were denied by the two-judge bench.
His request to apply for judicial review, which in general concerns a Court reviewing a executive
action, was deemed premature: at the time of the proceedings before the Divisional Court, the
Secretary of State had yet to make his decision concerning the extradition of Mr. Soering to the
United States16.
Mr. Soering then requested to appeal to the House of Lords - at that time still the highest
court in the United Kingdom - but his request was denied. Finally, Mr. Soering resorted to a
petition to the Secretary of State, asking not to be extradited. His petition was denied and some
two weeks later, on 3 August 1988, the Secretary of State ordered Mr. Soering to be extradited to
the Unites States17.

V. The opinion of the Court on the alleged breach of article 3 ECHR


In the following paragraph I will reiterate the argumentation of the Court regarding Mr. Soerings
claim that his extradition to the United States of America would give rise to a breach of Article 3
ECHR.
In the first paragraph of their judgment in the evaluation of a possible breach of Article 3,
the Court had to decide between the opinion of Mr. Soering on the one hand, who claimed that
"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 standard18",
and the opinion of the Government of the United Kingdom who claimed that Article 3 "should
not be interpreted so as to impose responsibility on a Contracting State for acts which occur
outside its jurisdiction19." The Court concludes that although the Convention cannot govern the
actions of States not party to it, nor can the United Kingdom have any power over the actions of
the Virgina authorities, the object, purpose and general spirit of the Convention have to be taken

15
Soering case at para 21.
16
Ibid, at para 22.
17
Ibid, at para 23,24.
18
Ibid, at para 82.
19
Ibid, at para 83.

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into account20. In their argumentation the Court notes that the specific article is an absolute right
– it is the single right in the Convention which doesn't allow any exception or derogation from21.
Furthermore, knowingly surrendering a fugitive, in this case Mr. Soering, to another State when
there is the belief he would be subjected to torture, would hardly fall under the values of the
Convention22. Therefore, the Court concludes that the extradition might be seen as a breach of
Article 323.
Next, the Court judged whether the foreseeable consequences of Mr. Soerings's return to
the United States are such as to fall under Article 3. Two questions are explored: first, whether
the applicant runs a real risk of being sentenced to death and secondly, whether the „death row
phenomenon' that comes along with this death sentence would constitute as degrading or
inhuman treatment and thus a breach of Article 3.
First, the Court questions if, should Mr. Soering be extradited to the United States, he would run
the risk of being sentenced to the death penalty. The Government of the United Kingdom argued
that Mr. Soering wasn't likely enough to be sentenced to death to bring Article 3 into play.
Amongst other things, the Government claimed there were multiple mitigating factors in the case
which would make it less likely he would ultimately be sentenced to death. Furthermore, the
Government had received reassurances from the Unites States which would significantly reduce
the risk for Mr. Soering24. The Court responded by saying that there were several factors making
it less likely Mr. Soering would face the death penalty in the end, but despite all these factors, a
possible sentencing to death could not be entirely ruled out25 – a fact admitted by the Attorney
General of the United Kingdom himself. Despite the fact the Government of the United Kingdom
had sought and received reassurances from the American Government, the Court notes that this
agreement was made between officials from the Government of the United Kingdom and of the
United States. The judge presiding in the Virginia Court is not bound by these reassurances 26. For
these reasons, the Court judged the sentence to death and the accompanying „death row
phenomenon‟ likely enough to occur to bring Article 3 into play27.

20
Soering case at para 87.
21
Ibid, at para 88.
22
Ibid, at para 88.
23
Ibid, at para 91.
24
Ibid, at para 93.
25
Ibid, at para 98.
26
Ibid, at para 97.
27
Ibid, at para 99.

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What follows then is the question whether the death sentence or the „death row
phenomenon‟ constitute torture or degrading or inhuman treatment and thus cause a breach of
Article 3. The Court first adresses the issue of the death penalty itself. It notes that the
Convention needs to be read as a whole, and therefore should keep in mind the second article of
the Convention, which concerns the right to life. This article forbids the deprivation of life, but
makes an explicit exception for situations where the law provides it: i.e. the death penalty28.
Considering the death penalty to be torture or inhuman or degrading treatment would thus cause a
conflict between Article 2 and Article 3 of the European Convention29. Mention is made of the
fact that the Convention is a living instrument and in interpreting it, present-day conditions
should be taken into account. Although death sentences and its executions are virtually non-
existant these days, the Court notes the creation of Protocol 6 to the European Convention on
Human Rights, which concerns the abolition of the death penalty. The existence of this protocol
the Court interprets as a wish by the States Party to the Convention to abolish the death penalty
by means of a normal method of amendment of the text, which gives each individual State the
option to subscribe to it30. The death penalty as such can therefore not be generally prohibited by
Article 3.
The Court goes on to explore whether the „death row phenomenon‟ that comes with being
sentenced to death would be of such a nature that it would fall under the definition of torture or
degrading or inhuman treatment in Article 3. A number of factors are taken into account by the
Court in deciding whether the circumstances of the „death row phenomenon‟ were of such a
degree of severity that Article 3 would apply31. First the length of detention prior to the execution
is considered. The average time spent on death row is 6 to 8 years and although the Government
of United Kingdom mentioned in their defense that this delay is caused by the prisoner himself
by continuing appeals, the Court judged that this was logical human behaviour. Therefore, the
prisoner spends years awaiting his execution with increasing tension and anguish32. This length
of imprisonment also affects the judgment on the conditions on death row: although the
conditions itself are not severe enough for Article 3 to come into play, the fact Mr. Soering would

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Article 2 of the ECHR states “1. 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.”
29
Soering case at para 103.
30
Ibid, at para 102.
31
Ibid, at para 104.
32
Ibid, at para 106.

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be subject to it for many years would make it relevant33. Thirdly, the Court argues that there is a
general principle nowadays to take into account the age of the person concerned when dealing
with questions concerning Article 3; a younger person may sooner fall under the definition of
inhuman or degrading treatment34. Finally, the Court notes the option of extraditing Mr. Soering
to the Federal Republic of Germany, where none of these issues would arise35. Taking into
account all these factors, the Court concludes that the „death row phenomenon‟ would expose Mr.
Soering to a treatment forbidden by Article 3. Because of this, the extradition of Mr. Soering
from the United Kingdom to the United States of America would be a breach of Article 3 of the
European Convention on Human Rights36.

VI. Implication and implementation


The judgment of the European Court of Human Rights is noted as a landmark decision foremost
for its interpretation of Article 3: it would imply an obligation of the State to assure the to be
extradited citizen is not subjected to any form of torture or degrading or inhuman treatment in the
receiving State. This has laid foundations for future judgments, most notably in the field of
immigration.
One such example is the case of Chahal v. United Kingdom which was brought before the
European Court of Human Rights. It concerned the case of Mr. Chahal, a Sikh seperatist, who the
Government of the United Kingdom wanted to extradite to India. Noting the risk of torture or
degrading or inhuman treatment upon his return to India and citing the judgment in the case of
Soering v. United Kingdom, it was decided that like in the Soering Case, the extradition of Mr.
Chahal would give a breach of Article 3 of the ECHR37.
This has opened the door on other possible situations that would fall under torture,
degrading or inhuman treatment. In the more recent case of N. v. United Kingdom for example,
the applicant was an Ugandan national, Ms. N., who sought asylum in the United Kingdom. Her
application for asylum was denied, and she was to be sent back to her country of origin. Before
the European Court of Human Rights, she argued that her extradition to Uganda would constitute

33
Soering case at para 107.
34
Ibid, at para 108, 109.
35
Ibid, at para 110.
36
Ibid, at para 111.
37
Case of Chahal v. United Kingdom (Application no.22414/93 ). European Court of Human Rights. Judgment
November 15, 1996.

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a breach of Article 3, because of her health condition. Ms. N. was a HIV/aids patient, and the
insufficient health care facilities in Uganda could be interpreted as inhuman or degrading
treatment. The Court however decided otherwise. In the case of the possible extradition of an ill
person, it provides in its judgment a number of strict criteria that must be met if the extradition is
to give rise to a breach of Article 338.
As described above, the judgment in the case of Mr. Soering v. United Kingdom has
made its way into subsequent case-law by the European Court of Human Rights. It has become a
customary principle in the field of immigration not to send back refugees back to countries where
their life may be in jeopardy or where they are likely to be subjected to torture or degrading or
inhuman treatment. Most notably, it has been implemented in the European Union, with a
Directive by the Council of the European Union in 2004, which states in Article 21 (1) that
"Member States shall respect the principle of non-refoulement in accordance with their
international obligations.39"
It might seem as a minor digression of the main subject of this paper, but I would like to
make note of a work of Maarten den Heijer, in which he evaluates the principle of non-
refoulement under the European Convention on Human Rights40. Because of cases like Soering v.
United Kingdom, the assumption has been created that only on the grounds of Article 2 and 3 of
the European Convention the principle of refoulement has any meaning. Den Heijer contests this
notion, stating that this is solely based on the idea that they are the fundamental rights of the
Convention – especially the Article we've been focussing on, Article 3, which is an absolute right
that doesn't allow any exception or derogation from. This creates the risk of sticking to this
definition too rigidly and deeming the other rights in the European Convention non-fundamental.
Each right in their own can in specific circumstances be violated by the extradition of a person –
despite the fact that thus far only Article 2 and 3 have been mentioned when the principle of
refoulement is at stake41.

38
Case of N. v. United Kingdom (Application no.26565/05). European Court of Human Rights. Judgment May 27,
2008.
39
Council Directive Art. 21 sub 1.Council of the European Union. 2004.
40
M. Den Heijer (2008).
41
Ibid, pp. 313-314.

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VII. Concluding remarks
In this paper I set out to reiterate the case of Soering v. United Kingdom and explore its meaning
for the interpretation of Article 3 of the European Convention on Human Rights. The main
research question of this paper was: did the decision of the Court in the case of Soering v. United
Kingdom widen the scope of article 3 of the European Convention on Human Rights and if so, in
what way?
The facts of the case of Mr. Soering v. United Kingdom are that Mr. Soering was a West-
German national imprisoned in the United Kingdom who faced extradition to the United States of
America for the alleged murder of the parents of his girlfriend. Amongst other things, Mr.
Soering claimed that this extradition would be a breach of Article 3 of the European Convention
on Human Rights, because he would run the risk of being sentenced to that and would be
subjected to something that was labelled the „death row phenomenon‟: the circumstances of
living on death row. The Court goes on to argue that this legal problem might indeed give rise to
a breach of Article 3 of the Convention, even given the fact that the act of torture or degrading or
inhuman treatment would fall outside the jurisdiction of the Government of the United Kingdom.
This is because the Court notes that knowingly handing over a prisoner to a country where he
would be subjected to this form of treatment, would be against the spirit, object and purpose of
the Convention. The Court further goes on to show that there was indeed a risk Mr. Soering
would be sentenced to the death. It judged the death penalty itself not to be in conflict with
Article 3, but the „death row phenomenon‟ would constitute a breach of Article 3, because of a
number of combined factors, most notably the age of the applicant and the duration of his stay on
death row.
The most important judgment for future cases however was in the first statement, saying
that governments had the obligation to assure no torture or degrading or inhuman treatment
would occur in the receiving state in case of an extadition of a citizen under their jurisdiction.
This has become a factor in subsequent cases and present-day immigration laws and has been
reflected in documents of the European Commission. A final note is made regarding the work of
Mr. Den Heijer, mentioning that although this widened scope of the Convention mainly concerns
Article 2 and 3, because of their fundamental nature, it should not be overlooked that in specific
circumstances other rights in the Convention may also play a factor in the extradition to another
State.

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VIII. Bibliography
Council of the European Union. Council Directive on minimum standards for the qualification
and status of third country nationals or stateless persons as refugees or as persons who
otherwise need international protection and the content of the protection granted
(2004/83 EC), 29 April 2004.
European Court of Human Rights. Case of Soering v The United Kingdom (Application no.
14038/88), Judgment July 7, 1989.
European Court of Human Rights. Case of Chahal v The United Kingdom (Application
no. 22414/93 ), Judgment 15 November 1996.
European Court of Human Rights. Case of N. v The United Kingdom (Application no. 26565/05),
Judgment 27 May 2008.
Heijer, M., den. Whose Rights and Which Rights? The continuing Story of Non-Refoulement
under the European Convention on Human Rights. European Journal of Migration and
Law, Volume 10 (2008) pp. 277-314.

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