Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 14038/88

Jens Soering

against

the United Kingdom

Report of the Commission

(adopted on 19 January 1989)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-17 ) ........................................ 1-3

A. The application

(para. 2) ..................................... 1

B. The proceedings

(paras. 3-12) ................................. 1-2

C. The present Report

(paras. 13-17) ............................... 2-3

II. ESTABLISHMENT OF THE FACTS

(paras. 18-88) ........................................ 4-14

A. The particular circumstances of the case

(paras. 18-36 ) ................................ 4-7

B. Relevant law and practice

in the United Kingdom

(paras. 37-45) ................................. 7-8

C. Relevant domestic law in the United States

(paras. 46-76) ................................. 9-13

The Law Relating to Murder

(paras. 46-53) ................................. 9

Sentencing Procedure

(paras. 54-63) ................................. 9-11

Diminished responsiblity

(paras. 64-66) ................................. 11

Appeals in capital cases

(paras. 67-73) ................................. 11-12

Legal assistance for appeals

(paras. 74-76) ................................. 12-13

Prison conditions in

Mecklenburg Correctional Center

(paras. 77-81) ................................. 13-14

D. Relevant law of the

Federal Republic of Germany

(paras. 82-88) ................................. 14

14038/88

- ii -

III. OPINION OF THE COMMISSION

(paras. 89-170) ........................................ 15-31

A. Points at issue

(para. 89) ..................................... 15

B. As regards Article 3 of the Convention

(paras. 90-154) ................................ 15-27

C. As regards Article 6 of the Convention

(paras. 155-157) ............................... 27-28

D. As regards Article 13 of the Convention

(paras. 158-169) ............................... 28-30

E. Recapitulation

(para. 170) .................................... 31

Dissenting opinion of Mr. J.A. Frowein ................. 32-33

Dissenting opinion of Mr. S. Trechsel .................. 33-35

Dissenting opinion of Mr. H. Danelius, joined by

Messrs. G. Jörundsson and H. Vandenberghe .............. 35-38

Concurring opinion of Messrs. J.C. Soyer and

A. Weitzel ............................................. 38-39

Concurring opinion of Mrs. J. Liddy .................... 39

APPENDIX I : HISTORY OF THE PROCEEDINGS .................. 40-41

APPENDIX II : DECISION ON THE ADMISSIBILITY ............... 42-63

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant, Mr. Jens Soering, born on 1 August 1966, is a

German national. He is at present detained at H.M. Prison, Wormwood

Scrubs, London, England. He is represented before the Commission by

Messrs. Powell Magrath and Spencer, solicitors, and Mr. Colin

Nicholls, Q.C., and Ms. C. Montgomery of counsel and Mr. P. Gardner,

adviser. The Government are represented by their Agent, Mr. M.C.

Wood, Foreign and Commonwealth Office.

The case concerns the imminent extradition of the applicant

to the United States of America where he fears that he will be

sentenced to death on charges of capital murder and subjected to the

"death row phenomenon". He invokes Articles 3, 6 and 13 of the

Convention.

B. The proceedings

3. The application was introduced before the Commission on

8 July 1988 and registered on 21 July 1988. On 11 August 1988 the

President of the Commission decided, in accordance with Rules 28

para. 3 and 42 para. 2 (b) of the Rules of Procedure to give notice

of the application to the respondent Government and to ask for their

observations on the admissibility and merits of the application

insofar as it raised issues under Articles 3 and 13 of the Convention.

No observations were requested in respect of the complaint under

Article 6 of the Convention. The President of the Commission also

decided on the same date to indicate to the Government of the United

Kingdom, in accordance with Rule 36 of the Commission's Rules of

Procedure, that it was desirable, in the interests of the parties and

the proper conduct of the proceedings, not to extradite the applicant

to the United States until the Commission had had an opportunity to

examine the application.

4. The Commission examined the application on 9 September 1988

and decided to prolong the above Rule 36 indication to the respondent

Government until the Commission had had an opportunity to examine the

case in the light of the parties' observations during its October

session (3 - 14 October 1988).

5. The respondent Government's observations were received on

9 September 1988. The applicant's observations in reply were received

on 4 October 1988.

6. The Commission next considered the application on 13 October

1988 and decided to invite the parties to a joint hearing on the

admissibility and merits of the case insofar as it raised issues under

Articles 3 and 13 of the Convention.

7. The Commission also decided at this time to prolong the above

Rule 36 indication to the respondent Government until the Commission

had had an opportunity to examine the application in the light of the

parties' submissions at the oral hearing.

8. At the hearing, which was held on 10 November 1988, the

applicant was represented by Mr. Colin Nicholls, Q.C.,

Ms. C. Montgomery, of counsel and Mr. R. Spencer, solicitor. The

Government were represented by their Agent, Mr. M.C. Wood, and by

Mr. M. Baker, of counsel, Mr. C. Osborne and Mr. N. Parker, as advisers.

9. Following the hearing, the Commission, having declared the

application admissible, decided on the same day to prolong the above

Rule 36 indication to the respondent Government until the Commission

had had a further opportunity to examine the application in the course

of its forthcoming December session (5 - 16 December 1988).

10. The parties were then invited to submit their further

observations on the merits. The respondent Government submitted their

supplementary observations on 1 December 1988 and the applicant

submitted his observations on 13 December 1988.

11. The Commission next considered the application on 10 December 1988

when it was decided to prolong the indication under Rule 36 concerning

the desirability of not extraditing the applicant pending the

proceedings until further notice from the Commission.

12. After declaring the case admissible the Commission, acting in

accordance with Article 28 (b) of the Convention, placed itself at the

disposal of the parties with a view to securing a friendly settlement

of the case. In the light of the parties' reactions, the Commission

now finds that there is no basis on which a friendly settlement can be

effected.

C. The present Report

13. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes in plenary session, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J. C. SOYER

H. DANELIUS

H. VANDENBERGHE

Sir Basil HALL

Mrs. J. LIDDY

14. The text of this Report was adopted by the Commission on

19 January 1989 and is now transmitted to the Committee of

Ministers of the Council of Europe, in accordance with Article 31

para. 2 of the Convention.

15. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found

disclose a breach by the State concerned of its

obligations under the Convention.

16. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application forms Appendix II.

17. The full text of the parties' submissions, together with

the documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

18. The facts of the case as they appear from the parties'

submissions may be summarised as follows:

19. On 13 June 1986 a grand jury of the Circuit Court of Bedford

County, Virginia, United States of America, indicted the applicant on

charges of murdering the parents of his girlfriend. The charges

alleged capital murder of both of them and the separate non-capital

murders of each.

20. On 31 July 1986 the Government of the United States requested

the applicant's extradition under the terms of the Extradition Treaty

between the United States and the United Kingdom of 1972. On

12 September 1986 a Magistrate at Bow Street Magistrates' Court was

ordered by the Secretary of State for Home Affairs to issue a warrant

for the applicant's arrest under the provisions of Section 8 of the

Extradition Act 1870. The applicant was subsequently arrested on

30 December 1986 at HM Prison Chelmsford after serving a twelve months'

prison sentence for cheque fraud.

21. On 16 December 1986 and 30 January 1987 the applicant's then

legal representative (Dr. Graupner) made representations to the

Secretary of State that the Order to the Magistrate to proceed with

the arrest of the applicant should have been made in respect of the

offence of manslaughter and not the offence of murder. He referred,

in particular, to the opinion expressed in medical evidence that the

applicant was suffering from a mental condition which would warrant a

verdict at his trial that he was not guilty of murder but guilty of

manslaughter by reason of diminished responsibility. The Secretary of

State rejected Dr. Graupner's submissions in letters dated 12 February 1987

and 9 April 1987.

22. On 11 February 1987 the local court in Bonn issued two

warrants for the applicant's arrest in respect of the alleged murders.

On 11 March 1987 the Government of the Federal Republic of Germany

requested his extradition to the Federal Republic under the terms of

the Extradition Treaty between the Federal Republic and the United

Kingdom. The Secretary of State was then advised by the Director of

Public Prosecutions that, although the German request contained proof

that German courts had jurisdiction to try the applicant, the evidence

submitted consisted solely of admissions made by the applicant to a

representative of the German Government which did not, in the

Director's view, amount to a prima facie case against him and that the

magistrate would not be able to commit the applicant to await

extradition to Germany on the strength of them.

23. In a letter dated 20 April 1987 to the Director of the Office

of International Affairs, Criminal Division, United States Department

of Justice, the Attorney for Bedford County, Virginia (Mr. Updike),

stated that, on the assumption that the applicant could not be tried

in Germany on the basis of admissions alone, there was no means of

compelling witnesses from the United States to appear in a criminal

court in Germany.

24. On 20 May 1987 the Government of the United Kingdom informed

the Federal Republic of Germany of the United States request and

indicated that they proposed to consider this request in the normal

way. The United Kingdom Government further indicated that they had

sought an assurance from the United States authorities on the question

of the death penalty and that "in the event that the court commits

Mr. Soering, his surrender to the United States' authorities would be

subject to the receipt of satisfactory assurances on this matter".

25. On 1 June 1987 Mr. Updike swore an affidavit in his capacity

as Attorney for Bedford County in which he certified as follows:

"I hereby certify that should Jens Soering be convicted of

the offence of capital murder as charged in Bedford County,

Virginia ... 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."

26. In a diplomatic note dated 17 May 1987 the Federal Government

of the United States undertook to ensure that the undertaking given by

the Attorney for Bedford County to make representations on behalf of

the United Kingdom would be honoured.

27. On 16 June 1987 at the Bow Street Magistrates' Court committal

proceedings took place before the Chief Stipendiary Magistrate. The

Government of the United States adduced evidence that on the night of

30 March 1985 the applicant killed William Reginald Haysom (aged 72)

and Nancy Astor Haysom (age 53) at their home in Bedford County,

Virginia. Death in each case was the result of multiple and massive

stab and slash wounds to the neck, throat and body. The applicant was

then 18 years old and his girlfriend, Miss Haysom, was then 20 years

old. Both were students at the University of Virginia.

28. Evidence was given that in October 1985 the applicant and Miss

Haysom travelled to Europe. They were subsequently arrested on

30 April 1986 in England on charges of cheque fraud. The Deputy Sheriff

of Bedford County travelled to Richmond to interview the applicant and

stated that the applicant admitted the killings in his presence and in

that of two United Kingdom police officers. A similar admission was

apparently made to a German Public Prosecutor who also interviewed the

applicant. The applicant had stated that he was in love with Miss Haysom

and that her parents were opposed to the relationship and that they

had planned to kill them. They rented a car in Charlottesville and

travelled to Washington where they set up an alibi. The applicant

then went to the parents' house, discussed the relationship with them

and when they told him they would do anything to prevent it, a row

developed during which he killed them with a knife.

29. At the committal proceedings, the applicant adduced inter alia

psychiatric evidence from a consultant forensic psychiatrist (Dr.

Bullard) that the applicant was immature and inexperienced and had

lost his personal identity in a symbiotic relationship with his

girlfriend - a powerful, persuasive and disturbed young woman. In Dr.

Bullard's opinion the applicant was suffering from a "folie à deux" -

a well recognised state of mind where one partner is so suggestible

that he believes in the psychotic delusions of the other. She

concluded that such a mental condition substantially impaired his

responsibility for his acts and, under United Kingdom law, would

constitute a defence of diminished responsibility reducing the offence

from murder to manslaughter.

30. The Chief Magistrate found that the evidence of Dr. Bullard

was not relevant to any issue that he had to decide and committed the

applicant to await the Secretary of State's Order for his return to

the United States.

31. The applicant had also been examined by Dr. Hamilton, Medical

Director of Broadmoor Hospital, who in a report dated 11 December 1986

stated as follows:

"I therefore believe that at the time of the homicides Jens

Soering was suffering from an abnormality of mind in which

the predominant feature was an impaired appreciation of

reality in this circumscribed but crucial area. It is my

opinion that at the time he was suffering from such an

abnormality of mind (arising from disease of the mind) as

to substantially impair his mental responsibility for his

acts. Were he to be tried for the homicides in England I

would be prepared to give evidence that he suffered from

diminished responsibility in terms of section 2 of the

Homicide Act 1957 and that he should therefore be liable to

conviction for manslaughter rather than murder.

On all occasions when I interviewed him I found Jens Soering

to be fit to plead and not under disability in relation to

trial."

32. On 29 June 1987 the applicant applied to the Divisional Court

for a writ of habeas corpus in respect of his committal. On 11

December 1987 this application was refused. In the course of his

judgment in the Divisional Court rejecting the application, Lord

Justice Lloyd commented that an assurance under Article IV of the

Anglo-United States Extradition Treaty "must mean an assurance by or

on behalf of the Executive Branch of Government, which in this case

would be the Governor of the Commonwealth of Virginia. The certificate

sworn by Mr. Updike, far from being an assurance on behalf of the

executive, is nothing more than an undertaking to make representations

on behalf of the United Kingdom to the judge. I cannot believe that

this is what was intended when the Treaty was signed."

33. On 30 June 1988 the House of Lords rejected the applicant's

petition for leave to appeal against the decision of the Divisional

Court.

34. On 10 March 1988 the Department of Justice of the United

States forwarded to the Government of the United Kingdom a further

affidavit sworn by Mr. Updike, Attorney for Bedford County, in which

he repeated the terms of the assurance previously given in the event

of the applicant's conviction for capital murder.

35. On 14 July 1988 the applicant petitioned the Secretary of

State, requesting him to exercise his discretion not to make an order

for the applicant's surrender under Section 11 of the Extradition Act

1870.

36. This request was rejected, and on 3 August 1988 the Secretary

of State signed a warrant ordering the Governor of HM Prison Wormwood

Scrubs to surrender the applicant to the United States authorities.

B. Relevant domestic law and practice in the United Kingdom

37. The law relating to extradition between the United Kingdom and

the United States of America is governed by the Extradition Acts

1870-1935, the Extradition Treaty signed by the two States on 8 June

1972, and an Exchange of Notes between the United Kingdom and the

United States, dated 24 September 1987.

38. After receipt of an extradition request, the Secretary of

State may decide to request a Magistrate to issue a warrant for the

arrest of the fugitive criminal (Extradition Act 1870, Sections 7 & 8).

Extradition proceedings in the United Kingdom consist of an

extradition hearing before a magistrate, and Section 11 of the

Extradition Act 1870 provides that decisions taken in those

proceedings may be challenged by way of application for habeas

corpus. In practice, such application is made to a Divisional Court

and, with leave, to the House of Lords. Section 12 of the 1870 Act

provides for the release of a prisoner, if not surrendered, at the

conclusion of such proceedings or within two months of committal

unless sufficient cause is shown to the contrary.

39. In addition, it is established that the Secretary of State

enjoys a discretion in the exercise of his powers under Section 11 of

the 1870 Act not to sign the surrender warrant (Atkinson v. United

States [1971] AC 197). This discretion may override a decision of

the courts that a fugitive should be surrendered, and it is open to

every prisoner who has exhausted his remedies by way of application

for habeas corpus to petition the Secretary of State for that purpose.

In considering whether to order the fugitive's surrender, the

Secretary of State is bound to take account of fresh evidence which

had not been before the magistrate (Schtraks v. Government of Israel

[1964] AC 556).

40. Furthermore, it is open to the prisoner to challenge both the

decision of the Secretary of State rejecting his petition and the

decision to sign the warrant in judicial review proceedings. In such

proceedings the court may review the exercise of the Secretary of State's

discretion on the basis that it is tainted with illegality, irrationality

or procedural impropriety (Council of Civil Service Unions and Others v.

Minister for the Civil Service [1984] 3 All ER 935).

41. Under the rule of speciality a defendant can only be tried on

his return to the United States for any offence which is disclosed by

the facts on which his surrender has been based.

42. There is no provision in the Extradition Acts relating to the

death penalty, but Article IV of the Anglo-United States Treaty

provides that:

"If the offence for which extradition is requested is

punishable by death under the relevant law of the

requesting Party, but the relevant law of the requested

Party does not provide for the death penalty in a similar

case, extradition may be refused unless the requesting Party

gives assurances satisfactory to the requested Party that

the death penalty will not be carried out."

43. In the case of a fugitive requested by the United States who

faces a charge carrying the death penalty, it is the Secretary of

State's practice, pursuant to Article IV of the Anglo-United States

Extradition Treaty, to accept an assurance from the prosecuting

authorities of the relevant State that a representation will be made

to the judge at the time of sentencing that it is the wish of the

United Kingdom that the death penalty should be neither imposed nor

carried out. This practice has been described by Mr. David Mellor,

then Minister of State at the Home Office, in the following terms:

"The written undertakings about the death penalty that the

Secretary of State obtains from the federal authorities

amount to an undertaking that the views of the United

Kingdom will be represented to the judge. At the time of

sentencing he will be informed that the United Kingdom does

not wish the death penalty to be imposed or carried out.

That means that the United Kingdom authorities render up a

fugitive or are prepared to send a citizen to face an

American court on the clear understanding that the death

penalty will not be carried out - it has never been carried

out in such cases. 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" (Hansard, 10 March 1987,

Col. 955).

44. Concurrent requests for extradition in respect of the same

crime from two different States are not a common occurrence. If both

requests are received at the same time, the Secretary of State decides

which request is to be proceeded with, having regard to all the facts

of the case, including the nationality of the fugitive and the place

of commission of the offence. This latter factor is likely to weigh

heavily with the Secretary of State since the evidence which would be

necessary for the trial will be most readily available there.

45. In this respect Article X of the Extradition Treaty between

the United Kingdom and the United States provides as follows:

"If the extradition of a person is requested concurrently by

one of the Contracting Parties and by another State or

States, either for the same offence or for different

offences, the requested Party shall make its decision, in so

far as its law allows, having regard to all the

circumstances, including the provisions in this regard in any

Agreements in force between the requested Party and the

requesting State, the relative seriousness and place of

commission of the offences, the respective dates of the

requests, the nationality of the person sought and the

possibility of subsequent extradition to another State."

C. Relevant domestic law in the United States of America

The Law Relating to Murder

--------------------------

46. The laws relating to the definition and classification of

murder and sentencing for murder are governed by the Code of Virginia

of 1950, as amended, and the decided cases in the State and Federal

Courts.

47. Section 18.2-31 of the Virginia Code provides that eight types

of murder constitute capital murder, punishable as a Class 1 felony.

Section 18.2-31 (g) provides that "the wilful, deliberate and

premeditated killing of more than one person as a part of the same act

or transaction" constitutes capital murder.

48. The punishment for a Class 1 felony is "death or imprisonment

for life" (Virginia Code, Section 18.2-10 (a)).

49. The prosecutor has no discretion to charge anyone but the

actual "triggerman" with capital murder except in cases involving

murder for hire (Johnston v. Commonwealth, 220 Va. 146, 255 S.E.2d 525

(1979)).

50. Murder, other than capital murder, by poison, lying in wait,

imprisonment, starving, or by any wilful, deliberate, and premeditated

killing, or in the commission of, or attempt to commit arson, rape,

forcible sodomy, inanimate object sexual penetration, robbery,

burglary, or abduction, except as provided in Section 18.2-31, is

murder of the first degree, punishable as a Class 2 felony. A Class 2

felony is punishable by imprisonment for life or for any term not

less than twenty years (Virginia Code, Section 18.2-10 (b)).

51. All murder, other than capital murder and murder in the first

degree, is murder in the second degree and is punishable as a Class 3

felony (Virginia Code, Section 18.2-32). A Class 3 felony is

punishable by a term of not less than five years and not more than

twenty years (Virginia Code, Section 18.2-10).

52. An accused may be tried on a charge of capital murder at the

same time as he is being tried on separate charges of murder of the

same victims (Bradshaw v. Commonwealth (Supreme Court of Virginia)

228 Va. 484, 323 S.E. 2d 567 (1984)). If a person is convicted of

capital murder, he may not be convicted of the lesser included charges

of murder. On the other hand, if he is not convicted of capital

murder he may be convicted on the separate charges of murder.

53. Under Virginia law a person reaches the age of majority when

he becomes eighteen years of age (Virginia Code, Section 1.13.42).

The imposition of the death penalty on a young person who has reached

the age of majority is not precluded under Virginia law. Age is a

fact to be weighed by the jury (Peterson v. Commonwealth, 225 Va. 289,

302 S.E.2d 520, cert. denied, 464 U.S. 865, 104 S Ct 202, 78 L Ed 2d 176

(1983)).

Sentencing Procedure

--------------------

54. The sentencing procedure in a capital murder case in Virginia

is a separate proceeding from the determination of guilt. Following a

determination of guilt of capital murder, the same jury, or judge

sitting without a jury, will forthwith proceed to hear evidence

regarding punishment. All relevant evidence concerning the offence

and the defendant is admissible. Evidence in mitigation is subject to

almost no limitation, while evidence of aggravation is restricted by

statute (Virginia Code, Section 19.1-264.4).

55. Unless the prosecution proves beyond a reasonable doubt the

existence of at least one of the statutory aggravating circumstances -

vileness or future dangerousness - the sentencer may not return a

death sentence. In order to establish "future dangerousness" under

Virginia law, the prosecution must prove beyond a reasonable doubt

that there is a probability that the defendant would commit "criminal

acts of violence" in the future such as would constitute a "continuing

serious threat to society" (Virginia Code, Section 19.2-264.2).

56. In order to establish the "vileness" aggravating circumstance,

the prosecution must prove beyond a reasonable doubt that the crime

was "outrageously or wantonly vile, horrible or inhuman in that it

involved torture, depravity of mind or an aggravated battery to the

victim" (Virginia Code, ibid.). The words "depravity of mind" mean

"a degree of moral turpitude and physical debasement surpassing that

inherent in the definition of ordinary legal malice and premeditation".

The words "aggravated battery" mean a battery which "qualitatively

and quantitatively, is more culpable than the minimum necessary to

accomplish an act of murder" (Smith v. Commonwealth, 219 Va. 455, 248

S.E.2d 135 (1978), cert. denied, 441 U.S. 967 (1979)).

57. Proof of multiple wounds sustained by the victim, particularly

a neck wound, which even considered alone, constituted an aggravated

battery in the light of the savage, methodical manner in which it was

inflicted, leaving the victim to suffer an interval of agony awaiting

death, has been held to satisfy the test of "vileness" under this

Section (Edmonds v. Commonwealth, 229 Va. 303, 329, S.E.2d 807, cert.

denied U.S. S Ct 339, 88 L Ed 2d 324 (1985)).

58. Even if the aggravating circumstances are shown, however, the

sentencer still remains at liberty to impose a life sentence instead

of death for no reason other than mercy (Smith v. Commonwealth,

loc. cit.).

59. Following a sentence of death fixed by a jury, or by a judge

sitting without a jury, the trial judge must order the preparation of

an investigative report detailing the defendant's history and other

relevant facts (Virginia Code, Section 19.2-264.5). Upon presentation

and review of the report, the court may set aside the sentence of

death and impose a life sentence.

60. The sentencing judge in a capital case considers "any and all"

relevant facts in order to assure that the penalty of death is

"appropriate and just" (Virginia Code, Section 19.2-264.5).

61. The Virginia death penalty statutory scheme has been

judicially determined to be constitutional. It was considered to

prevent the arbitrary or capricious imposition of the death penalty

and to narrowly channel the sentencer's discretion (Smith v.

Commonwealth, loc. cit.; Turnver v. Bass, 753 F.2d 342 (4th Cir.

1985); Briley v. Bass, 750 F.2d 1238 (4th Cir. 1984)).

62. The death penalty statute in Virginia has also been held not

to constitute cruel and unusual punishment nor deny a defendant due

process or equal protection (Stamper v. Commonwealth, 220 Va. 260, 257

S.E.2d 808 (1979), cert. denied, 445 U.S. 972, 100 S Ct 1666, 64 L.Ed.2d

249 (1980)). The Supreme Court of Virginia rejected the submission

that death by electrocution would cause "the needless imposition of

pain before death and emotional suffering while awaiting execution of

sentence" (ibid.).

63. The Supreme Court reviews automatically every case in which a

capital sentence has been passed. In addition to consideration of

"any errors in the trial" alleged by the defendant on appeal, the

Supreme Court reviews the death sentence to determine whether it was

imposed "under the influence of passion, prejudice or any other

arbitrary factor" or whether it is excessive or disproportionate "to

the penalty imposed in similiar cases" (Virginia Code, Section

17-110.1).

Diminished responsibility

-------------------------

64. The law of Virginia generally does not recognise a defence of

diminished capacity (Stamper v. Commonwealth, 228 Va. 707, 324 S.E.2d

682 (1985)). No person, however, may be tried for a criminal offence

while he is insane or feebleminded (Virginia Code, Section 19.2-167).

At any point before the end of trial, a defendant's mental condition

may be evaluated to determine whether he lacks substantial capacity to

understand the proceedings or to assist his attorney (Virginia Code,

Section 19.2-169.1).

65. A plea of insanity is recognised as a defence in Virginia and,

if successful, is a bar to conviction. Such a plea will apply where

the defendant knows that the act is wrong, but is driven by an

irresistible impulse to commit it (Thompson v. Commonwealth, 193

Va. 704, 70 S.E.2d 284 (1952)) or where he does not understand the

nature, character and consequences of his act or is unable to

distinguish right from wrong (Price v. Commonwealth, 228 Va. 452, 323

S.E.2d 106 (1984)).

66. In a capital murder trial, the defendant's mental state at the

time of the offence is admissible as a mitigating factor to show that

the defendant was under the influence of extreme mental or emotional

disturbance (Virginia Code, Section 19.2-264.4B(ii)). Additionally,

indigent capital murder defendants are entitled by statute to the

appointment of a mental health expert to assist in the preparation and

presentation of information concerning the defendant's mental

condition (Virginia Code, Section 19.2-264.3:1). Upon presentation of

evidence of the defendant's mental state, the sentencer may elect to

impose life imprisonment rather than the death penalty.

Appeals in capital cases

------------------------

67. The automatic direct appeal to the Supreme Court of Virginia

is governed by the Rules of the Supreme Court of Virginia and

encompasses various time limitations for the filing of briefs. In

addition, Rule 5:23 gives precedence to the review of sentences of

death before any other case (see also Virginia Code, Section 17-110.2).

Normally the time taken by this appeal does not exceed six months.

68. After this appeal process is completed, the sentence of death

will be executed unless a stay of execution is entered. As a

practical matter, a stay will be entered when the prisoner initiates

further proceedings.

69. The prisoner may apply to the United States Supreme Court for

certiorari review of the decision of the Supreme Court of Virginia

and, if unsuccessful, may then begin collateral attacks upon the

conviction and sentence in both State and Federal courts. The

prisoner may file a habeas corpus petition in either the Supreme Court

of Virginia or the trial court, with appellate review, by petition,

in the Supreme Court of Virginia. He may then again apply to the

United States Supreme Court for certiorari review of the State's

habeas corpus decision. He may then file a petition for a writ of

habeas corpus in the Federal District Court, followed by an appeal to

the Federal Circuit Court of Appeals, and by a petition for certiorari

review in the United States Supreme Court. At each stage of his

collateral attacks, he may seek a stay of execution pending final

determination of the petition for a writ of habeas corpus.

70. The Virginia and Federal statutes and rules of court set

time-limits for the presentation of appeals following conviction or

appeals against the decisions in habeas corpus proceedings. There

are, however, no time-limits for filing the initial State habeas

corpus petition or the initial Federal habeas corpus petition.

71. The grounds which may be presented and argued on appeal are

restricted by the "contemporaneous objections rule" to those which

have been raised in the course of the trial. The rule was adopted in

support of the principle that the real issues between the parties

should be canvassed and determined at the trial and not on appeal or

in any subsequent review proceedings. Grounds of appeal which are

procedurally barred for this reason before the State courts will also,

with certain exceptions, be procedurally barred before the Federal

Court. The rule has been upheld by the Federal Courts (Briley v.

Bass, 750 F.2d 1238 (4th Cir. 1984)).

72. Errors to which no objections were made at the trial may be

objected to on appeal where this is necessary to attain the ends of

justice. In death penalty cases, the proportionality of the sentence

and the issue of whether the sentence was imposed under the influence

of passion, prejudice or other arbitrary factor, is reviewed without

regard to whether objection was made at trial to the issue.

73. The Eighth Amendment to the Constitution of the United States

prohibits, inter alia, "cruel and unusual punishments". The United

States Supreme Court has not as yet considered or ruled on the issue

of the "death row phenomenon".

Legal assistance for appeals

----------------------------

74. All prisoners who have been sentenced to death have individual

lawyers to represent them, whether privately recruited or court-appointed.

Legal assistance is not available to the indigent prisoner to file habeas

corpus petitions. However, it has recently been affirmed by the United

States Court of Appeal for the Fourth Circuit that indigent prisoners who

have been sentenced to death are entitled to the assistance of lawyers to

pursue challenges to their death sentences in State habeas corpus actions

(Giarratano v. Murray, 847 F.2d 1118 (4th Cir. 1988)) (en banc).

75. Virginia inmates also have access to legal information and

assistance in the form of law libraries and institutional attorneys.

The institutional attorneys are available to assist inmates in "any

legal matter relating to their incarceration" (Virgina Code, Section

53.1-40) including the drafting of habeas corpus petitions and motions

for appointment of counsel for the inmates to file.

76. A prisoner is not obliged to proceed with counsel, and he may

litigate in both State and Federal courts pro se.

Prison conditions in Mecklenburg Correctional Center

----------------------------------------------------

77. Mecklenburg Correctional Center is a maximum security

institution, having a capacity of a total of 335 inmates. The

majority of inmates under the sentence of death in the State of

Virginia are also detained in Mecklenburg. Institutional Operating

Procedures (IOP 821.1) establish uniform operating procedures for the

administration, security, control and delivery of necessary services

to death row inmates in Mecklenburg. In addition conditions of

confinement are governed by a comprehensive consent decree handed down

by the United States District Court in Richmond in the case of Alan

Brown, et al. v. Allyn R. Sielaff, et al (5 April 1985). Both the

Virginia Department of Corrections and the American Civil Liberties

Union monitor compliance with the terms of the consent decree. The

United States District Court also retains jurisdiction to enforce

compliance with the decree.

78. The size of a death row inmate's cell is 10ft. by 7½ft.

Prisoners have an opportunity for approximately 7½ hours recreation

per week in summer and approximately six hours per week, weather

permitting, in winter. The death row area has two recreation yards,

both of which are equipped with basketball courts and one is equipped

with weights and weight benches. Inmates are also permitted to leave

their cells on other occasions, such as to receive visits, to visit

the law library or to attend the prison infirmary. In addition death

row inmates are given one hour out-of-cell time in the morning in a

common area. Each death row inmate is eligible for work assignments,

such as cleaning duties.

79. Death row inmates receive the same medical service as inmates

in the general population. An infirmary equipped with adequate supplies,

equipment and staff provides for twenty-four-hour inpatient care, and

emergency facilities are provided in each building. Mecklenburg also

provides psychological and pychiatric services to death row inmates.

The United States District Court (Eastern District of Virginia) has

recently upheld the adequacy of mental health treatment available to

death row inmates in Mecklenburg (Stamper, et al v. Blair, et al,

decision of 14 July 1988).

80. Inmates are allowed non-contact visits in a visiting room on

Saturdays, Sundays and holidays between 8.30am and 3.30pm. Attorneys

have access to their clients during normal working hours on request as

well as during the scheduled visiting hours. Death row inmates who

have a record of good behaviour are eligible for contact visits with

members of their immediate family two days per week. Outgoing

correspondence from inmates is picked up daily and all incoming

correspondence is delivered each evening.

81. Mecklenburg contains a law library equipped with a large

assortment of legal books and commonly court forms in compliance

with a decision of the United States Supreme Court (Bounds v. Smith,

430 U.S. 817 (1977)). A law library officer as well as inmate law

clerks are available to assist inmates. In addition inmates are

permitted the check out legal volumes for overnight consultation.

Inmates are also provided with typewriters for use in their cells or

for use in the law library.

D. Relevant law of the Federal Republic of Germany

82. Extradition between the United Kingdom and the Federal

Republic of Germany is governed by an extradition treaty of 14 May

1872 (Treaty between the United Kingdom and Germany for the Mutual

Surrender of Fugitive Criminals) as amended by an Agreement signed at

Bonn (23 February 1960) and by an Exchange of Notes (27 September 1978).

These amendments are incorporated into the law of the United Kingdom

by the Federal Republic of Germany (Extradition) Order 1960 (S.I.

1960 No. 1375) and the Federal Republic of Germany (Extradition)

(Amendment) Order 1978 (S.I. 1978 No. 1403).

83. The Federal Republic of Germany has abolished the death

penalty (Article 102 of the Basic Law (1949)).

84. German criminal law applies to acts committed abroad by a

German national if the act is liable to punishment at the place where

the offence is committed (German Criminal Code, Section 7). Murder

carries a life sentence (German Criminal Code, Section 211 (I)) and is

defined as follows:

"He is deemed a murderer who because of murderous

lust, to satisfy his sexual instinct, for reasons

of covetousness or for otherwise base motives,

insidiously or cruelly or by means constituting a

public danger or in order to render another crime

possible or to conceal another crime kills a person"

(German Criminal Code, Section 211 (II)).

85. Under Section 53 of the German Criminal Code a cumulative

sentence will be passed on a person who has committed several offences

which are to be tried concurrently.

86. Under the German Juvenile Court Act (1953 as amended) a

juvenile is defined as a person who is at least fourteen but not yet

eighteen years old at the time of the criminal act. A young adult is

a person who is eighteen but not yet twenty-one years old (Section 1).

87. If a young adult commits an offence the judge will apply the

provisions applicable to a juvenile, inter alia, if "the general

assessment of the offender's personality, considering also the

circumstances of his environment, reveals that, according to his

moral and mental development, he was still equal to a juvenile at the

time of committing the offence" (Section 105). The maximum sentence

for young adults who come within this Section is ten years'

imprisonment (Section 105 (III)).

88. A judge may decide to pass a sentence of ten to fifteen years

instead of a life sentence with regard to a crime committed by a young

adult where the general criminal law is to be applied (German

Juvenile Court Act, Section 106).

III. OPINION OF THE COMMISSION

A. Points at Issue

89. The principal issues to be determined are:

1. Would the extradition of the applicant to the United States

of America in the circumstances of the present case

constitute treatment contrary to Article 3 (Art. 3) of the Convention?

2. Would the extradition of the applicant constitute a breach of

Article 6 para. 3 (c) (Art. 6-3-c) of the Convention due to

the absence of legal aid in the State of Virginia to pursue

various State and Federal appeals?

3. Does the applicant have an effective remedy under the law of

the United Kingdom in respect of his complaint under Article 3

(Art. 3) as required by Article 13 (Art. 13) of the Convention?

B. As regards Article 3 (Art. 3) of the Convention

90. Article 3 (Art. 3) of the Convention provides as follows:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

91. The applicant complains under Article 3 (Art. 3) of the Convention that

if he is extradited to the United States of America he runs the risk

of being sentenced to death and spending a protracted period in prison

awaiting execution pending the exhaustion of collateral State and

Federal appeals. He does not complain that the death penalty itself

constitutes a breach of this provision but limits his complaint to the

risk of exposure to the "death row phenomenon". He submits that the

exceptional delay in carrying out the death penalty in Virginia

constitutes inhuman and degrading treatment and punishment contrary to

this provision.

92. The respondent Government contend that the applicant does not

in reality risk the death penalty. They point to the assurance that

has been given by the Commonwealth Attorney that the trial judge will

be informed of the wish of the United Kingdom Government that the

death penalty not be imposed or carried out. In addition, the

sentencing court will be able to take into consideration important

mitigating factors such as the applicant's age, his mental condition

at the time of the alleged commission of the offence, his scholastic

record and the absence of a previous criminal record. In the

alternative the Government submit that the applicant cannot rely upon

delays caused by his own voluntary actions. Moreover, the machinery

of justice in the State of Virginia contains numerous safeguards

against the arbitrary imposition of the death penalty and guarantees

respect for human rights.

93. At the hearing the Government accepted the Commission's

case-law concerning State responsibility under Article 3 (Art. 3) of the

Convention in the area of deportation or extradition for the purposes

of the proceedings before the Commission. However, they reserved

their position in relation to this case-law since the question has

never been decided by the European Court of Human Rights.

1. General principles

A. Deportation or Extradition

--------------------------

94. The Commission recalls its case-law that a person's deportation or

extradition may give rise to an issue under Article 3 (Art. 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

(see No. 10308/83, Altun v. Federal Republic of Germany, Dec. 3.5.83, D.R. 36

pp. 209-235; No. 10078/82, M. v. France, Dec. 13.12.84, D.R. 41 p. 103; also

No. 10479/83, Kirkwood v. the United Kingdom, Dec. 12.3.84, D.R. 37 pp.

158-191). It is only in exceptional circumstances that the removal of a person

will give rise to an issue under Article 3 (Art. 3) and the burden lies on the

applicant to substantiate his fear that he will be exposed to treatment or

punishment falling under that Article (see No. 8581/79, Dec. 6.3.80, D.R. 29 p.

48).

95. According to Article 1 (Art. 1) of the Convention:

"The High Contracting Parties shall secure to

everyone within their jurisdiction the rights

and freedoms defined in Section 1 of this

Convention."

96. It could therefore be argued that if a Convention State

deports or extradites a person within its jurisdiction to another

country where he is subjected to treatment in violation of the

Convention the deporting or extraditing State is not responsible as

such for the violation which is only opposable to the receiving State

where the actual treatment (for example - treatment prohibited by Article 3)

(Art. 3) takes place. The deportation or extradition, however, can under

certain circumstances involve the responsibility of the deporting or

extraditing Convention State. If, for example, a Convention State deports or

extradites a person to a country where it is certain or where there is a

serious risk that the person will be subjected to torture or inhuman treatment

the deportation or extradition would, in itself, under such circumstances

constitute inhuman treatment for which the deporting or extraditing State would

be directly responsible under Article 3 (Art. 3) of the Convention. The basis

of State reponsibility in such cases lies in the exposure of a person by way of

deportation or extradition to inhuman or degrading treatment in another

country.

97. The Commission finds support for its approach in the fact that national

courts have reached the same conclusion (see, for example, Arrêts du Tribunal

Fédéral Suisse, 108 I b 411, 111 IV, 12) and that the international community

has endorsed a similar provision in important international treaties. For

example, Article 3 (Art. 3) of the United Nations Convention against Torture

provides that:

"1. No State party shall expel, return ("refouler") or

extradite a person to another State where there are

substantial grounds for believing that he would be in

danger of being subjected to torture.

2. For the purpose of determining whether there are such

grounds, the competent authorities shall take into

account all relevant considerations including, where

applicable, the existence in the State concerned of a

consistent pattern of gross, flagrant or mass violations

of human rights."

98. For these reasons the Commission considers that if conditions

are such that there exists a serious risk of treatment in breach of

Article 3 (Art. 3) of the Convention, the deportation or extradition of an

individual to face such conditions incurs the responsibility under

Article 1 of the Convention of the Contracting State which so decides

(see No. 10308/83, loc. cit.).

99. The task of the Commission is thus to assess the existence

of a serious danger for the person deported or extradited, or whose

deportation or extradition is imminent.

B. The death penalty and the relationship between

Articles 2 and 3 (Art. 2, 3) of the Convention

----------------------------------------------

100. The Commission recalls that Article 2 (Art. 2) of the Convention

expressly permits the imposition of the death penalty by a court

following conviction for a crime for which that penalty is provided by

law. Article 2 para. 1 (Art. 2-1) of the Convention provides as follows;

"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."

101. The Commission notes that the 6th Protocol to the Convention

which came into force on 1 March 1985 provides for the abolition of

the death penalty. However, this Protocol has neither been signed nor

ratified by the United Kingdom and thus has no relevance in the

present case as far as the obligations of the respondent Government

are concerned.

102. It follows that extradition of a person to a country where he

risks the death penalty cannot, in itself, raise an issue either under

Article 2 or Article 3 (Art. 2, 3) of the Convention. However, the above

provision does not exclude the possibility of an issue arising under Article 3

(Art. 3) of the Convention in respect of the manner and circumstances in which

the death penalty is implemented. For example it cannot be excluded that

protracted delay in carrying out the death penalty (the "death row phenomenon")

could raise an issue under this provision (see Kirkwood v. United Kingdom,

loc. cit., passim).

103. The Commission in the Kirkwood case rejected the argument that because

the death penalty is specifically permitted by Article 2 para. 1 (Art. 2-1) of

the Convention delays associated with the appeal process must be assumed to be

compatible with both Articles 2 and 3 (Art. 2, 3) of the Convention read

together. The Commission stated as follows:

"The Commission cannot accept this contention. Whilst it

acknowledges that the Convention must be read as one document,

its respective provisions must be given appropriate weight

where there may be implicit overlap, and the Convention

organs must be reluctant to draw inferences from one text

which would restrict the express terms of another.

As both the Court and the Commission have

recognised, Article 3 (Art. 3) is not subject to any qualification.

Its terms are bald and absolute. This fundamental aspect

of Article 3 (Art. 3) reflects its key position in the structure of

the rights of the Convention, and is further illustrated by

the terms of Article 15 para. 2 (Art. 15-2) which permit no derogation

from it even in time of war or other public emergency

threatening the life of the nation.

In these circumstances the Commission considers that

notwithstanding the terms of Article 2 para. 1 (Art. 2-1), it cannot be

excluded that the circumstances surrounding the protection

of one of the other rights contained in the Convention might

give rise to an issue under Article 3 (Art. 3) " (loc. cit., p. 184).

C. Inhuman and degrading treatment

-------------------------------

104. The concepts of inhuman and degrading treatment have been

elucidated in the following way by both the Commission and the

European Court of Human Rights. The notion of inhuman treatment covers

at least such treatment as deliberately causes severe suffering,

mental or physical. Further, treatment of an individual may be said

to be degrading if it grossly humiliates him before others or drives

him to act against his own will or conscience (see inter alia, Ireland

v. the United Kingdom, Comm. Report 25.1.76, Yearbook 19 p. 512, at

749).

105. The European Court of Human Rights has also stressed that:

"... ill treatment must attain a minimum level of

severity if it is to fall within the scope of

Article 3 (Art. 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

duration of the treatment, its physical or mental

effects and, in some cases, the sex, age and

state of health of the victim ..."

(Eur. Court H.R., Ireland v. United Kingdom

judgment of 18 January 1978, Series A no. 25

p. 65, para. 162; see also Eur. Court H.R.,

Tyrer judgment of 25 April 1978, Series A

no. 26, paras. 29 and 30).

D. Anticipatory nature of the present proceedings

----------------------------------------------

106. It is not contested by the respondent Government that the

applicant can claim to be a "victim" within the meaning of Article 25 para. 1

(Art. 25-1) of the Convention. In this respect the Commission recalls its

decision in the Kirkwood case that an applicant who is faced with an imminent

act of the executive which might expose him to inhuman treatment can claim to

be a victim of an alleged violation of Article 3 (Art. 3) of the Convention

(loc. cit., p. 182).

107. Nevertheless, the Commission in the present case is not confronted

with a claim that the alleged breach of the Convention has actually taken

place. The Commission's examination of the case must address the question of

whether a breach of the Convention would occur on the implementation of the

decision of the respondent Government to extradite the applicant to the United

States.

108. The issue before the Commission is thus anticipatory in nature and the

Commission's conclusion on the question of whether there is a breach of the

Convention must necessarily be a conditional one based on the decision to

extradite to the United States. This approach is dictated both by the serious

nature of the complaint made and by considerations relating to the

effectiveness of the Convention system. If the Convention bodies could only

examine such a complaint after the extradition had actually taken place, the

protection of the applicant, by way of the right of individual petition, from

harm that may be irremediable in nature would not be effective.

109. Since the Convention bodies were set up to protect the individual,

the Convention must be applied in a manner which serves to make the system of

individual applications efficacious (see, mutatis mutandis, Eur. Court H.R.,

Klass judgment of 6 September 1978, Series A no. 28, p. 18, para. 34).

2. Risk of exposure to the death penalty

110. The Commission must first examine whether there is a serious risk of

the applicant being sentenced to death and thus exposed to "death row". It

must assess whether the risk that the applicant will be sentenced to death is a

real one before examining the severity of the treatment to which he could be

exposed (see Kirkwood v. United Kingdom, loc. cit., p. 185).

A. Sentencing proceedings ---------------------- 111. The

Government submit that the applicant is not likely to receive the death penalty

since he could show that he was insane at the time of the commission of the

offence, i.e. that he was driven to commit the crime by an irresistible

impulse. The defence of insanity is a complete defence to the charge of murder

under the law of Virginia. In addition, the Government point to important

mitigating factors which must be taken into account by the judge and jury in

the separate sentencing proceedings, namely, the applicant's age at the time of

the offence, his high scholastic record, the absence of any criminal record and

his mental state at the time the offence was committed. Even if the jury is

not persuaded by these factors they must be taken into account by the judge who

passes sentence after consideration of a report concerning the applicant's

background. He may set aside the death penalty and impose a life sentence.

112. The applicant, on the other hand, states that there is a strong risk

that he will be sentenced to death. He stresses that the defence of insanity

is not open to him since there is no medical evidence that he was insane at the

moment of the offence in the sense that he was subject to an irresistible

impulse or that his faculty to decide between right and wrong was impaired. He

claims rather that at the time of the commission of the offence his mental

ability and thus his responsibility for his acts was substantially diminished

by reason of the "folie à deux" which was subsequently diagnosed. He points

out that the defence of diminished responsibility is not open to him under the

law of Virginia and neither the judge nor the jury are obliged to take it into

account.

113. The Commission considers that it cannot be excluded that the death

penalty will be imposed, notwithstanding the applicant's claimed mental

condition at the moment of the crime and the possibility of a persuasive plea

in mitigation. It notes that the applicant does not contest that he actually

committed the offences and has made admission statements to this effect (see

para. 28 above). Moreover, the murders were committed in a manner which does

not exclude that the aggravating circumstance of "vileness" could be

established by the prosecution. Finally the Commission observes that the

medical evidence adduced by the applicant in the course of the extradition

proceedings does not appear to provide the basis for the defence of insanity

under Virginia law, tending only to substantiate his claim of diminished

responsibility which may only be taken into account as a mitigating factor in

the discretion of the judge and jury when passing sentence (see paras. 64-66

above).

B. The assurance ------------- 114. The Government further

submit that the applicant is unlikely to receive the death penalty since an

assurance within the meaning of Article IV of the extradition treaty has been

received from the competent authorities in the United States that a

representation will be made to the judge at the time of sentencing that the

death penalty should not be imposed or carried out. The assurance provided by

the Attorney for Bedford County (Mr. Updike) reads as follows:

"I hereby certify that should Jens Soering be convicted of the offence of

capital murder as charged in Bedford County, Virginia ... 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."

115. The Government contend that this is the best assurance they can obtain

under Virginia law since neither the Governor nor the Attorney General can

dictate to either a prosecutor or trial court the charges to be tried or the

sentence to be imposed. Further, while the assurance obtained does not bind

the judge, he is by law obliged to take such a representation into account. It

is therefore likely to have the desired effect.

116. The Government also emphasise that the assurance must be seen in the

diplomatic context of their extradition relationship with the United States.

This relationship would be seriously undermined if the death penalty was

imposed. Furthermore, even if the death penalty was imposed, the respondent

Government, as well as the United States Government, would use whatever

influence was available to them to prevent its implementation.

117. The applicant does not accept that the assurance will be effective.

He claims that it is not the best assurance that could have been obtained under

Article IV of the Extradition Treaty and points to a Federal case (Hamadei) and

a case concerning the State of Florida (Haake) where more effective assurances,

to the effect that the death penalty shall not be sought, have been given by

the competent United States authorities. He further disputes that the

sentencing judge would be able under Virginia law to have regard to such a

representation and submits that its consideration would give rise to important

constitutional issues. He submits, in essence, that the assurance is of no

value.

118. The Commission cannot prejudge the impact and status of the assurance

under Virginia law. In particular it is not incumbent on the Commission to

express an opinion on difficult questions of Virginia law which are disputed by

the parties, such as whether the sentencing judge may lawfully have regard to

the representations made to him before he passes sentence, or whether it is

open to the Attorney for Bedford County to have provided, as in the Haake case,

a more effective assurance. The Commission must nevertheless be satisfied that

the assurance given is likely to remove the risk that the death penalty will be

imposed.

119. The Commission observes that, irrespective of whether the sentencing

judge can have regard to the representation made to him on behalf of the

respondent Government, he is not obliged under Virginia law to accept it.

Moreover, as an independent judge, under a legal duty to consider "any and all"

relevant facts in order to assure that the penalty is "appropriate and just",

it cannot be assumed that he will have regard to the diplomatic considerations

relating to the continuing effectiveness of the extradition relationship

between the two countries which have been alluded to by the Government.

Further it has not been shown that such a representation to the judge could

have an impact on the carrying out of the penalty if imposed.

120. Against the above background the Commission finds that,

notwithstanding the asssurance and the existence of mitigating factors, the

risk that the applicant will be sentenced to death is a serious one.

121. The Government have also contended that if the death sentence were to

be imposed further diplomatic representations would be made to ensure that the

penalty was not carried out. It is not, however, clear to which authority such

representations would be made apart from the Governor in the form of an appeal

for clemency following the exhaustion of all State and Federal appeals. As the

Commission noted in the Kirkwood case, such a procedure would not remove the

risk of the applicant being exposed to the death row phenomenon (see Kirkwood

v. the United Kingdom, loc. cit., p. 188).

3. Severity of treatment

122. It remains for the Commission to examine whether the "death row

phenomenon" to which the applicant could be subjected attains a degree of

seriousness contrary to Article 3 (Art. 3) of the Convention. The Commission's

task in evaluating this question is not "to assess as a mathematical

probability the likelihood of the applicant being exposed to the treatment

about which he complains, but to examine the machinery of justice to which he

will be subjected and to establish whether there are any aggravating factors

which might indicate arbitrariness or unreasonableness in its operation" (loc.

cit., p. 189). 123. The applicant alleges that, in the circumstances of his

case, the "death row phenomenon" constitutes inhuman and degrading treatment

and punishment. He refers, in particular, to delays in the appeal system, the

fact that his age and mental condition might not be taken into account in

determining sentence, the conditions of detention on "death row" in Mecklenburg

Correctional Center, the execution procedure, and the possibility that he could

be extradited to the Federal Republic of Germany. The Commission will deal

with each of these submissions in turn.

A. Length of detention on "death row" as a result of the appeal

system --------------------------------- 124. The applicant

emphasises that the delays in the appeal system are more severe than in the

Kirkwood case and one prisoner has already spent more than nine years on "death

row" (Joseph Giarratano). He submits that the true average, excluding one case

of a prisoner who did not exercise his appeal rights, is around eight years.

It cannot be said to be the responsibility of the prisoner that he is exposed

to the phenomenon since it is to be expected that he will seek to escape

execution by pursuing all avenues of appeal open to him. Finally, he submits

that such a system is unnecesarily cruel in nature and is likely to have a more

serious effect on him in view of his age.

125. The Government accept that the average time between trial and execution

in Virginia is between six and seven years, although they point out that this

figure is based on the seven executions which have taken place in Virginia

since 1977. The automatic appeal before the Supreme Court of Virginia only

takes six months and the delays are primarily due to a strategy by convicted

prisoners to prolong the appeal proceedings as much as possible. In the

Government's submission, insofar as the delays exist because of the

availability of avenues of appeal coupled with an intentional tactic of delay,

they cannot constitute a breach of Article 3 (Art. 3).

126. The Commission considers it to be established, on the evidence

available to it, that the average time spent on death row in Virginia is

between six and eight years, although it notes that the statistics are based

only on the seven executions which have taken place since the death penalty was

re-introduced in Virginia in 1977. The Commission cannot lose sight of the

reality that death row inmates contribute significantly to the "death row

phenomenon" through the exercise of their State and Federal rights of appeal.

It is significant, in this regard, that the direct automatic appeal to the

Supreme Court of Virginia takes six to eight months and that the remaining

delays are brought about by the exercise of these rights of appeal.

127. The Commission has previously recognised the essential dilemma of the

"death row phenomenon" in the Kirkwood case. A prolonged appeal system

generates acute anxiety over long periods owing to the uncertain, but possibly

favourable, outcome of successive appeals. On the other hand, an acceleration

of the system would result in earlier executions in cases where appeals were

unsuccessful (loc. cit., p. 190).

128. As in the Kirkwood case, the Commission must take into account in

assessing the seriousness of the delays the momentous significance of these

appeals for the inmate whose life depends upon the outcome. The inmate on

"death row" is not the victim of an unjust system which permits those who have

been sentenced to death to languish in prison until the State decides to

implement the sentence. On the contrary, a significant part of the delay which

forms the basis of the present complaint derives from a complex of procedures

which are designed to protect human life and to protect against the arbitrary

imposition of the death penalty. As the Commission remarked in the Kirkwood

case:

"In these circumstances the tradition of the rule of law which

underlies the principles of the Convention requires painstaking

thoroughness in the examination of any case the effects of which will

be so irremediably decisive for the appellant in question" (loc. cit.,

p. 188).

129. Finally, as in the Kirkwood case, the Commission attaches great

importance to the fact that it would be open to the applicant to raise before

United States and Virginia courts the complaint that the "death row phenomenon"

constitutes cruel and unusual punishment contrary to the Eighth Amendment of

the United States Constitution (loc. cit., p. 189).

130. Against the above background, the Commission does not consider that the

length of time spent on death row due to the appeal system attains the degree

of severity envisaged by Article 3 (Art. 3) of the Convention.

B. Age and Mental condition of the applicant

----------------------------------------- 131. The applicant states that at

the moment of the commission of the offence he was only 18 years of age and

suffering from a mental disability, less than insanity, which ought to be taken

into account in fixing sentence. He submits that his mental condition does not

afford him any defence to the charges of capital murder and that there is no

rule of law which precludes the judge or jury from imposing the death penalty

in such a case.

132. The Government contend that although the law of Virginia does not

recognise the defence of diminished responsibility the defendant's mental state

at the time of the offence is admissible as a mitigating factor to show that

the defendant was under the influence of mental or emotional disturbance. Both

the judge and the jury are obliged under Virginia law to take such matters into

account. In addition the age of the applicant as well as his scholastic

abilities and lack of criminal record are also factors that can be taken into

consideration in mitigation.

133. The Commission recalls the opinion of the psychiatrists in the United

Kingdom who examined the applicant and who were both of the opinion that, at

the time of the offence, the applicant was suffering from an abnormality of

mind as to substantially impair his mental responsibility for his acts. While

it is true that the defence of diminished responsibility does not exist under

the law of Virginia the mental condition of the accused is a factor which must

be taken into account, first by the jury and subsequently by the judge, in

passing sentence. In this regard the Commission notes that defendants are

entitled under Virginia law to the appointment of a mental health expert to

assist in an assessment of their mental condition at the moment of the crime.

Further, the jury is obliged to take into account inter alia both the

defendant's age and the influence of extreme mental or emotional disturbance

and any impairment to his ability to conform to the requirements of the law.

These factors must also be taken into account by the judge. Moreover, upon

presentation of the defendant's mental state, the sentencer may elect to impose

life imprisonment rather than the death penalty (see paras. 64-66 above).

134. The Commission finds that both the age and mental condition of the

applicant are matters which would be taken into account under Virginia law by

judge and jury at the separate sentencing proceedings and therefore no question

of inhuman treatment can arise in this respect.

C. Conditions of detention in Mecklenburg Correctional Center and

execution procedures

--------------------------------------------------- 135. The applicant

claims that the actual conditions of detention on death row are severe in

character. The cell is small and recreation time averages only six hours per

week. In 1987, death row inmates were "locked down" (confined to their cells)

for five months. During this period the average recreation time was less than

three hours a week. The applicant further claims that inmates health care is

meagre. There is no physician-patient confidentiality and psychiatric

examinations are inadequate, consisting of perfunctory examinations followed by

medication. He states that more than one half of all death row inmates were

receiving large doses of thorazine. In addition, he refers to the extreme

security provisions including the requirement that inmates move around the

prison in special handcuffs chained around the waist. Finally he refers to the

detailed description of the execution procedure which inevitably plays upon the

mind of the inmate (see the dissenting judgment of Mr. Justice Brennan in

Glass v. Louisiana). He submits that the above conditions, combined over an

uncertain period with the prospect of execution, constitute inhuman and

degrading treatment and punishment contrary to Article 3 (Art. 3) of the

Convention.

136. The Government submit that inmates have sufficient opportunities for

recreation and that the conditions and facilities in Mecklenburg are governed

by policies and rules (Institutional Operating Procedures) which cover all

aspects of the regime on "death row" and allocate responsibility to particular

prison officers for their implementation. They include very specific

provisions on medical and psychiatric evaluation and treatment, on visiting

rights and correspondence, access to attornies and to reading material, and on

the conditions governing the prisoner's work, food and recreation. The

Government note that the rules contained in the Operating Procedures constitute

rights which may be enforced by the inmate, either by use of the grievance

procedure under the Civil Rights of Institutionalised Persons Act, or by

mechanisms provided pursuant to a United States District Court Decree of 1985

which provides further standards for conditions of confinement.

137. Finally, the Government point out that the Supreme Court of Virginia

has rejected the argument that the method of execution by electrocution

constitutes cruel and unusual punishment contrary to the Eighth amendment of

the United States Constitution.

138. The Commission has had regard to the Institutional Operating Procedures

which govern every aspect of the prison regime in "death row". The Commission

has also examined the consent decree made by the United States District Court

in Richmond, in the case of Alan Brown et al v. Allyn R. Sielaff et al, which

sets out detailed conditions of detention on "death row" to be observed by the

prison authorities (see para. 77 above). 139. It is established from these

sources that prisoners on "death row" are kept in a cell which is 10 feet by 7½

feet and that they have adequate recreation time and facilities as well as the

possibility of work. Similarly, adequate provision is made for visits and

contact with the outside world including contact with their attorneys. They

also have regular access to a prison law library (see paras 78-80 above).

140. The Commission also notes that inmates on "death row" receive the same

medical services as inmates in the general prison population which provides

24-hour in-patient care and emergency facilities. Finally, the Commission notes

from the case of Stamper v. Blair (decision of 14 July 1988) that the United

States District Court (Eastern District of Virginia) has found there to exist

adequate mental health treatment in Mecklenburg Correctional Center for "death

row" inmates (see para. 79 above).

141. The Commission has no doubt that day-to-day conditions on "death row"

must be tense and stressful. However, this flows from the very nature of a

detention centre which houses prisoners who have been sentenced to death and

who, consequently, require a higher level of security than other prisoners.

142. As regards execution by electrocution, the Commission notes that the

Virginia Supreme Court has rejected the submission that electrocution would

cause "the needless imposition of pain before death and emotional suffering

while awaiting execution of sentence" and would therefore constitute cruel or

unusual punishment contrary to the Eighth Amendment of the United States

Constitution (Stamper v. Commonwealth, see para. 62 above). In the light of

the similarity between Article 3 (Art. 3) of the Convention and the Eighth

Amendment, the Commission must attach substantial weight to the above finding

of the Virginia Supreme Court.

143. In the circumstances of the present case, the Commission does not

consider that the conditions of detention on "death row" or the execution

procedures attain a level of severity contrary to Article 3 (Art. 3) of the

Convention.

D. Possibility of extradition to the Federal Republic of Germany

------------------------------------------------------------- 144. The

applicant claims that as a matter of international law the Government are not

bound to extradite him to the United States and are free to extradite him to

the Federal Republic of Germany. He submits with reference to the confession

statements that he made in the presence of both United States and British

police officials that there is sufficient evidence to support extradition to

the Federal Republic.

145. Finally, the applicant contends that the principles of legal certainty

and security which are inherent in the rule of law require that an individual

may not be surrendered out of the protective zone of the Convention without

certainty that the legal regime of protection to which he would be exposed is

as effective or more effective than the Convention standard. It is submitted

that this requirement is also reflected in the principle that State

interference with rights protected by the Convention must be proportionate to

the aim sought to be realised and must not infringe the individual's rights

beyond the limits which are justifiable in the circumstances. 146. The

Government point out that the Crown Prosecution Service have advised the

Government that there was insufficient evidence adduced by the Federal Republic

of Germany to support the extradition request, although it is admitted that,

with his consent, he could be deported to the Federal Republic. Moreover, they

contend that it is normal practice to extradite an offender to the country

where the offence occurred and where evidence concerning the offence is more

readily available.

147. The Government further submit that this extradition request has no

relevance to the issue under Article 3 (Art. 3). They maintain that the

question of whether there is a breach of Article 3 (Art. 3) should involve

exclusively an objective assessment of the gravity of the treatment complained

of in the light of the purpose for which extradition is sought and the risk of

such treatment actually occurring. To interpret Article 3 (Art. 3) otherwise

would mean that the finding of a violation could depend on such extraneous

matters as the nationality of the person whose extradition is sought and the

preparedness of his Government to seek his extradition or to prosecute him if

deported. Such an interpretation could result in a dual standard which affords

protection to one applicant while refusing it to another in the same position.

Finally, the Government submit that the refusal of a legitimate demand for

extradition by the United States of America could adversely affect the

extradition arrangements between the two countries as well as the goal of

punishing crime.

148. The question therefore arises whether the possibility of extraditing

the applicant to the Federal Republic of Germany is a factor to be taken into

consideration in assessing whether the applicant's extradition to the United

States would constitute a breach of Article 3 (Art. 3) of the Convention.

149. The Commission recalls that its task under Article 3 (Art. 3) is to

assess the existence of an objective danger that the person extradited would be

subjected to treatment contrary to this provision. Moreover, it recalls that

the State's obligation under Article 1 (Art. 1) of the Convention is to secure

the rights and freedoms defined in Section 1 to every person within its

jurisdiction, regardless of his or her nationality or status. It follows, from

both provisions read together, that the assessment of the risk that a person

might be subject to inhuman treatment contrary to Article 3 (Art. 3) depends on

an objective assessment of conditions in the country concerned and is

independent of the nationality of the applicant or the possibility of

extraditing him to his own country.

150. The Commission therefore does not consider that the possibility of

extradition to the Federal Republic of Germany, even if it could take place, is

a relevant consideration in assessing the risk of treatment contrary to Article

3 (Art. 3) of the Convention.

4. Final assessment

151. The Commission recalls its finding in the Kirkwood case that the

treatment the applicant was likely to endure in the circumstances of the case

did not attain the degree of seriousness envisaged by Article 3 (Art. 3) of the

Convention. In reaching this decision the Commission attached significance to

the fact that there existed complex and detailed measures to accelerate the

appeal system in capital cases in California and that such cases were treated

with particular vigilance to ensure their compliance with the Californian and

United States Constitutions; that the automatic appeals procedure was of

momentous significance for the appellant whose life depended on it and that its

essential purpose was to ensure protection of the right to life and to prevent

arbitrariness and, further, that it could be argued in United States and

Californian courts that the "death row phenomenon" was cruel and unusual

punishment under the Eighth Amendment of the United States Constitution.

152. The Commission considers that the present case cannot, in reality, be

distinguished from the Kirkwood case. In the first place the Commission

observes that although the delays in the appeal system appear to be longer in

the present case, they are, in the main, attributable to the inmates' voluntary

action in pursuing State and Federal appeals. It is significant that the

automatic appeal procedure to the Virginia Supreme Court only lasts six to

eight months. Further, there is no indication that the machinery of justice

to which the applicant would be subjected is an arbitrary or unreasonable one.

On the contrary the Commission observes that the death penalty scheme in

Virginia contains numerous safeguards against arbitrariness and that the appeal

system has, as its fundamental purpose, the avoidance of the arbitrary

imposition of the death penalty and protection of the prisoner's right to life.

153. Finally, the Commission notes that the important mitigating factors in

the present case, namely, the age and mental condition of the applicant, are

matters which can be fully taken into consideration by both the judge and jury

at the sentencing phase and in any subsequent State and Federal appeals.

154. Conclusion

The Commission concludes, by six votes to five, that the extradition of

the applicant to the United States of America in the circumstances of the

present case would not constitute treatment contrary to Article 3 (Art. 3) of

the Convention.

C. As regards Article 6 (Art. 6) of the Convention

155. The applicant complains of the absence of legal aid under Virginia law

to fund the collateral State and Federal appeals following the automatic appeal

to the Supreme Court of Virginia. He invokes Article 6 para. 3 (c) (Art.

6-3-c) of the Convention which provides as follows:

"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; ..."

156. The Commission recalls that it can only examine complaints

directed against one of the States Parties to the Convention. In this

respect the Commission points out that the respondent Government could

not be held directly responsible under the Convention for the absence

of legal aid under Virginia law - a matter entirely within the

responsibility of the United States of America. Nor could the

proposed extradition of the applicant give rise to the responsibility

of the respondent Government under Article 6 para. 3 (c) (Art. 6-3-c) of the

Convention.

Conclusion

157. The Commission concludes, by a unanimous vote, that the

extradition of the applicant would not constitute a breach of

Article 6 para. 3 (c) (Art. 6-3-c) of the Convention due to the absence of

legal aid in the State of Virginia to pursue various State and

Federal appeals.

D. As regards Article (Art. 13) 13 of the Convention

158. This provision provides as follows:

"Everyone whose rights and freedoms as set forth in

this 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."

159. The applicant submits that he has no effective remedy in

respect of his complaint under Article 3 (Art. 3) of the Convention that he is

likely to receive the death penalty and be subjected to the "death row

phenomenon". He claims that the Secretary of State cannot be regarded

as sufficiently independent and impartial to constitute an effective

remedy. Furthermore, judicial review of the Secretary of State's

decision is limited to the question of whether he acted reasonably and

not to whether his decision is in conformity with the Convention.

160. The respondent Government contend, in the first place, that

Article 13 (Art. 13) does not apply because the applicant's complaint under

Article 3 (Art. 3) of the Convention is not 'arguable'. They further submit

that this provision has no application in respect of an anticipated

violation of the Convention since it would create potential

difficulties for the domestic authorities both in terms of deciding

whether a breach of the Convention was likely to occur and the nature

of the remedy to be granted. Finally the Government accept that the

courts could not review the exercise of discretion by the Secretary of

State on the basis that the applicant might be exposed to treatment in

breach of Article 3 (Art. 3) but maintain that this provision is satisfied by

the following remedies, taken on their own or in aggregate, an

action for habeas corpus, a petition to the Secretary of State and

judicial review of his decision.

1. General considerations

161. Article 13 (Art. 13) has been interpreted in the following way by

the European Court of Human Rights in the case of Silver and Others:

"(a) where an individual has an arguable claim to be

the victim of a violation of the rights set forth in the

Convention, he should have a remedy before a national

authority in order both to have his claim decided and,

if appropriate, to obtain redress (see the ... Klass and

others judgment, Series A no. 28, p. 29, para. 64);

(b) the authority referred to in Article 13 (Art. 13) may not

necessarily be a judicial authority but, if it is not,

its powers and the guarantees which it affords are

relevant in determining whether the remedy before it is

effective (ibid., p. 30, para. 67);

(c) although no single remedy may itself entirely satisfy

the requirements of Article 13 (Art. 13), the aggregate of remedies

provided for under domestic law may do so (see, mutatis

mutandis, ... X v. the United Kingdom judgment, Series A

no. 46, p. 26, para. 60 and the Van Droogenbroeck judgment

of 24 June 1982, Series A no. 50, p. 32, para. 56);

(d) neither Article 13 (Art. 13) nor the Convention in general lays

down for the Contracting States any given manner for ensuring

within their internal law the effective implementation of any

of the provisions of the Convention - for example, by

incorporating the Convention into domestic law (see the

Swedish Engine Drivers' Union judgment of 6 February 1976,

Series A no. 20, p. 18, para. 50).

It follows from the last-mentioned principle that the

application of Article 13 (Art. 13) in a given case will depend

upon the manner in which the Contracting State concerned

has chosen to discharge its obligation under Article 1

(Art. 1) directly to secure to anyone within its jurisdiction the

rights and freedoms set out in section I (see ... Ireland

v. the United Kingdom judgment, Series A no. 25, p. 91,

para. 239)."

(Eur. Court H.R., Silver and Others judgment of 25 March

1983, Series A no. 61, p. 42, para. 113)

2. Application of principles in the present case

162. The Commission recalls that the applicant's complaint under

Article 3 (Art. 3) of the Convention is an admissible complaint. Article 13

(Art. 13) is thus applicable in the present case since the complaint is

obviously "arguable" under Article 3 (Art. 3) of the Convention.

163. Further, the Commission considers that this provision also

applies in respect of "arguable" claims under Article 3 (Art. 3) of the

Convention which are prospective or anticipatory in nature. As the

Commission stated above (see para. 108), the examination of such

a complaint after extradition has taken place would hardly be

consonant with an effective system of individual application. It

follows from the nature of the guarantee under Article 13 (Art. 13) that the

requirement to provide an effective remedy must also extend in this

domain to arguable claims made by a person whose extradition or

expulsion is imminent and who may be exposed to harm which is

irremediable in nature. Any other interpretation would substantially

weaken the guarantee of an effective remedy under this provision.

164. As to the effectiveness of the remedies available under United

Kingdom law in respect of this complaint, the Commission notes,

firstly, that the remedy of habeas corpus was open to the applicant

after the committal proceedings before Bow Street Magistrates' Court

on 16 June 1987. However, it is clear that the courts can only

examine the question whether the extradition proceedings were properly

conducted in accordance with the law of the United Kingdom and cannot

examine the applicant's allegations as to the treatment he would be

exposed to in the United States. This remedy is not, therefore, an

effective remedy for purposes of this provision.

165. Further, as regards a petition to the Secretary of State for

Home Affairs, the Commission observes from Section 11 of the

Extradition Act 1870 that it is incumbent on the Secretary of State to

take the final decision to order the applicant's extradition following

committal by a Magistrate. Moreover, it is the Secretary of State who

orders the Magistrate to arrest a person with a view to extradition.

In the light of the Secretary of State's role in the extradition

procedure it cannot be said that he is independent of the parties in

the exercise of his discretion under Section 11 (see paras. 38 and 39

above). For this reason the Commission does not consider that the

possibility of petitioning the Secretary of State constitutes an

effective remedy under this provision.

166. As regards judicial review proceedings following the Secretary

of State's order, the Commission notes that it is not contested by

the Government that the courts limit their examination to the question

of whether the Secretary of State has acted illegally, irrationally

or improperly and do not examine the applicant's fear that he might be

exposed to inhuman or degrading treatment and punishment (see para. 40

above). Accordingly the Commission does not consider that judicial

review proceedings constitute an effective remedy as required by this

provision.

167. Finally, the Commission does not consider that the above

remedies considered in aggregate provide an effective remedy. In the

Commission's view the lack of effectiveness of each remedy, considered

in isolation, is not cured by considering the aggregate of remedies

as a whole since the imperfections which taint each single remedy

remain (see Nos. 9659/87 and 9658/82, Rice and Boyle v. the United

Kingdom, Comm. Report 7.5.86, p. 126, para. 85).

168. It follows that the applicant does not have an effective

remedy under the law of the United Kingdom in respect of his complaint

under Article 3 (Art. 3) as required by Article 13 (Art. 13) of the Convention.

Conclusion

169. The Commission concludes, by seven votes to four, that there

has been a violation of Article 13 (Art. 13) in the present case.

E. Recapitulation

170. The Commission concludes

- by six votes to five, that the extradition of the applicant

to the United States of America in the circumstances of the

present case would not constitute treatment contrary to

Article 3 (Art. 3) of the Convention (para. 154);

- by a unanimous vote, that the extradition of the

applicant would not constitute a breach of Article 6

para. 3 (c) (Art. 6-3-c) of the Convention due to the absence of

legal aid in the State of Virginia to pursue various

State and Federal appeals (para. 157);

- by seven votes to four, that there has been a violation

of Article 13 (Art. 13) in the present case (para. 169).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

In accordance with Rule 53 para. 1 (g) of the Rules of

Procedure the following opinions are appended to the Report:

- Dissenting opinion of Mr. J.A. Frowein;

- Dissenting opinion of Mr. S. Trechsel;

- Dissenting opinion of Mr. H. Danelius,

joined by Messrs. G. Jörundsson and H. Vandenberghe;

- Concurring opinion of Messrs. J.C. Soyer and A. Weitzel;

- Concurring opinion of Mrs. J. Liddy.

&_Dissenting opinion of Mr. J.A. Frowein&S

I am of the opinion that the possibility to extradite the

applicant to the Federal Republic of Germany is of legal relevance

in the present context in view of the risk concerning death row and

execution in Virginia not denied by the majority of the Commission.

The Government argue that the possibility to extradite or

deport the applicant to the Federal Republic of Germany cannot be

taken into account because that would create unjustifiable differences

for persons who could face inhuman treatment after extradition to a

specific country. The Government point to the possible consequences

of such an approach if the crime had been committed by the applicant

together with his girlfriend, who is a United States citizen.

Although Article 3 does not permit any restrictions the

Commission and Court have always referred to the specific

circumstances of the case to establish a violation of Article 3

(para. 105 of the Report). The nationality of the applicant and the

option of extraditing him to a convention country are not extraneous

factors to the case. To put the issue in a simplified way one may

describe it as follows: - Would it be inhuman treatment to send a

person to stand trial in a country where he possibly faces execution

after a lengthy detention on death row while an alternative not

involving this risk is legally possible?

The question of what form of treatment amounts to inhuman

treatment cannot be decided in the abstract. It is true that the

Convention permits extradition to countries which practice the death

penalty, at least for those Convention countries which have not

ratified the Sixth Protocol. The reason for that is that Article 2

expressly permits the death penalty. However, in the same way as the

death penalty under that Article can only be imposed for the most

severe crimes - otherwise it is inhuman punishment - the decision to

extradite to a country applying the death penalty requires a specific

justification, if there are other alternatives open. Where a question

of life and death arises a country bound by the Convention is under an

obligation to take that decision having regard to all the

circumstances. To base an extradition decision which may have the

effect that a person be executed on formal grounds only is in my

opinion not compatible with Article 3 of the Convention.

The Government argue that it is in general desirable in the

interest of justice that an offence should be tried in the country

where it was perpetrated. However, international extradition law

and practice do not recognise this as an absolute principle. Many

countries, among them the Federal Republic of Germany, do not

extradite their own nationals. Extradition may be refused for many

other reasons and the person tried in the country where he or she was

arrested or, as here, in a third country.

The applicant is a German who lived in the United States

because his father holds an official position there. After the crime

which he allegedly committed, he fled to the United Kingdom. The

United Kingdom, without breaching its extradition treaty with the

United States, may extradite him to the Federal Republic of Germany.

In this event the applicant would have to stand trial in his home

country without facing the death penalty.

To take the decision to extradite the applicant to the United

States, without receiving a formal assurance that the death penalty

would neither be sought nor imposed - a possibility specifically

foreseen in Article IV of the British/US Extradition Treaty - amounts,

in view of the possibility of extradition to the Federal Republic of

Germany and in the absence of compelling reasons against it, in my

opinion to treatment in violation of Article 3.

&_Dissenting opinion of Mr. S. Trechsel&S

While I largely agree with the general approach of the

majority to the present case, I conclude that the extradition of the

applicant to the United States of America under the prevailing

circumstances would constitute a violation of Article 3 of the

Convention. The reason why I seek to express a separate dissenting

opinion is not because I disagree with the views developed in the

other dissenting opinions but because I prefer to base the finding of

a violation on an evaluation of all the circumstances of the case as

opposed to one particular element (see, mutatis mutandis, Eur. Court

H.R., Barberá, Messegué and Jabardo judgment of 6 December 1988,

Series A no. 146, para. 89).

At the outset, I wish to explain my position as to the

relationship between Articles 2 and 3 of the Convention. I agree

with the majority that the exception for capital punishment in

Article 2 para. 1 does not exclude that in specific circumstances

the implementation of the death penalty could amount to a violation

of Article 3.

It may seem surprising that the Convention prohibits inhuman

and degrading treatment but permits capital punishment which could

be regarded as a clear example of such treatment. This paradox is to

be explained by the historic context of the drafting of the

Convention. Today, however, Article 2 para. 1, inasmuch as it accepts

capital punishment, must be regarded as reflecting an attitude to the

death penalty which has since undergone substantial change and is now

outdated. Protocol No. 6 has abolished the death penalty and has so far

been ratified by 12 High Contracting Parties. While for the remaining

minority of States the death penalty remains admissible, its growing

rejection leads one to conclude that aggravating circumstances, i.e.

suffering beyond that necessarily inherent in execution, injustice or

an element of disproportionality brings capital punishment into the

realm of inhuman treatment prohibited by Article 3.

In the present case I find a plurality of such aggravating

circumstances, namely the "death row phenomenon", the age of the

applicant at the time of the deed, the mental condition of the

applicant at that time and the fact that, in the present case, it

would be possible for the respondent Government to extradite the

applicant to a State party to the Convention where he does not incur

the risk of being sentenced to death and executed.

a) The applicant risks exposure to "death row" for a period of

six to eight years. During this time he would live in a stressful and

tense environment exacerbated by humiliating conditions of security

and constantly uncertain as to his fate. If this element might not,

in itself, make the extradition appear as inhuman treatment, it brings

it, at any rate, very near to the limit.

I should add that I cannot accept the argument used in the

majority opinion according to which the harshness of the "death row

phenomenon" is outweighed by the fact that numerous appeal proceedings

serve the interests of the applicant. In fact, Article 6 para. 1 of

the Convention gives a right to speedy trial irrespective of whether

the charge is a very serious one or of a petty nature. On the other

hand, it cannot be seriously argued that the applicant should shorten

his time on "death row" by waiving his right to some appeals. How

could anybody reasonably be expected not to pursue a remedy which

might avoid or postpone his being killed?

b) At the time he allegedly committed murder he was just over

eighteen. His age, as such, could not be regarded as bringing capital

punishment (or exposure to the risk of such punishment) under Article 3.

I find it important, however, that in the present case there is a

serious risk that the applicant be executed eight to ten years after

the deed. The person executed at the age of twenty-six or

twenty-eight would be a different person from the eighteen-year-old

alleged author of the crime.

c) Furthermore, it has been shown, and it is not contested by the

respondent Government, that at the time of the alleged murder the

applicant was involved in a very disturbed relationship with his

girlfriend, a so-called "folie à deux", and that due to this fact his

criminal responsibility was diminished. In other words, atrocious or

vile as the objective appearance of the crime might have been, the

applicant cannot be held fully responsible for his behaviour and his

guilt is accordingly diminished.

At the same time it is not disputed that under the law of Virginia

the condition of the applicant cannot be regarded as "insanity" and

that there is no obligation for the court to even take it into account,

when sentencing, as a mitigating circumstance.

While it is true that the mental condition of the accused is a

factor which must be taken into account by both the judge and jury in

deciding on the appropriate penalty, there exists no rule of law which

prevents the imposition of the death penalty on persons whose

responsibility for their acts is diminished, by virtue of mental

disability. The weight to be attributed to such factors is a matter

which lies entirely within the discretion of the judge and jury.

Indeed, there exists the possibility that mental disturbance of this

form could be considered an aggravating factor (see criterion of

"future dangerousness" para. 55 of the Report).

This leads to the conclusion that the applicant risks the

harshest punishment provided for by law although he may not have been

fully responsible for his acts. The punishment by death in these

circumstances would, in my opinion, be disproportionate and thereby

unjust. In its judgment in the Weeks case (Series A no. 114, para. 47,

p. 25) the Court has rightly indicated that disproportionate

punishment may infringe Article 3 of the Convention.

d) Finally I also take into consideration the argument developed

by Mr. Frowein concerning the alternative option of extraditing the

applicant to the Federal Republic of Germany. If extradition in

general and all the hardship associated with it for the person

concerned is acceptable under the Convention (cf. Article 5 para. 1

(f)), it is because it serves the purpose, in a broad sense, of

preventing crime (cf. Articles 8 - 11, paras. 2). Such hardship can

only be justified insofar as it is proportionate to the aim pursued.

If that aim can also be achieved by means causing less hardship to the

person concerned, these other means must be used. If they are not, in

a situation where the person risks exposure to inhuman treatment, the

interference becomes disproportionate.

In the present case it is open to the respondent Government to

extradite the applicant to the Federal Republic of Germany where he

does not face capital punishment but would also be tried for the

offences. The element of disproportionality associated with the

extradition to the United States of America, at the very least,

contributes to making such extradition a breach of Article 3.

As I have indicated at the outset, I do not find it necessary

to determine whether any one of the four elements set out above leads,

in itself, to the extradition constituting a violation of Article 3.

I have no hesitation, however, to conclude that in the present case

these four elements considered jointly constitute aggravating

circumstances which would, in the event of the applicant's extradition

to the United States of America, amount to inhuman treatment contrary

to Article 3 of the Convention.

As regards the finding of the Commission with regard to

Article 6 of the Convention, I agree with it in substance but would

add a supplementary observation. In my view, a State which extradites

a person to another State for the purpose of criminal prosecution is

not a priori free from any responsibility as to the fairness of

the proceedings in the requesting State. In fact, recent legislation

on mutual assistance in criminal matters provides for an obstacle to

such assistance where the requesting State does not respect the right

to fair trial (see, for example, the relevant Swiss and Austrian

statutes). Extradition is an act of participating in the proceedings

of the requesting State. If the requested State knowingly concurs in

unfair proceedings, it also bears some responsibility for the

violation of human rights of the person concerned. In the present

case, however, I am not satisfied that the applicant has shown with

sufficient certainty that his right under Article 6 para. 3 (c) would

not be respected in Virginia. I would not exclude, on the other hand,

that if such a violation were to occur the respondent Government could

later be held (partly) responsible for such violation.

&_Dissenting opinion of Mr. H. Danelius, joined by Mr. G. Jörundsson

and Mr. H. Vandenberghe

(in regard to Article 3 of the Convention)

1. Although I am in agreement with a large part of the reasoning

of the majority of the Commission in regard to Article 3 of the

Convention, I have reached the conclusion that the applicant's

extradition to the United States of America would constitute, in the

present circumstances, a violation of that provision.

2. I share the opinion of the majority that extradition of a

person to another country can be regarded as a breach of Article 3 if

there is a serious risk of the extradited person being subjected in

that country to treatment or punishment which is "inhuman" within the

meaning of Article 3. I also agree that the Convention organs are

competent to examine cases of this kind before extradition has taken

place, since this is in most such cases necessary in order to make the

guarantees of the Convention effective.

3. The crucial question in the present case is therefore whether

the applicant, if extradited to the United States, would be under a

serious risk of being exposed to inhuman treatment or punishment.

4. In this regard I find, like the majority of the Commission,

that there is a serious risk that the applicant will be sentenced to

death. This would presumably mean that he would be placed on death

row, and it is impossible to foresee the outcome of the - possibly

very long - proceedings which could then be expected to follow,

depending to a large extent on the action taken by the applicant

himself. I do not consider that the undertaking given by the Attorney

for Bedford County is sufficient to eliminate the threat of the death

penalty being in the end implemented.

5. Since the risk which exists in the present case is closely

connected with the death penalty, it is necessary to examine the

relationship between Article 2 of the Convention, which specifically

permits that penalty, and Article 3, which prohibits inhuman treatment

and punishment.

6. It is obvious that specific rights guaranteed by the

Convention must be understood and interpreted in the context of other

rights also guaranteed by the Convention and that one provision of the

Convention should not be so interpreted as to come into conflict with

another provision of the Convention. It follows that the death

penalty, which is expressly permitted by Article 2 provided that

certain conditions are satisfied, cannot in general be regarded as

inhuman treatment or punishment within the meaning of Article 3. This

does not exclude, however, that there may be special circumstances

justifying a different conclusion. Such circumstances may relate to

the nature of the crime (e.g. a trivial offence under the laws of the

Convention States) or the personal circumstances of the offender (e.g.

his young age or his poor state of health) or indeed to the manner of

execution. Moreover, the way a person sentenced to death is treated

pending the implementation of the sentence or pending the outcome of

various proceedings could of course also raise questions under Article 3.

7. In the present case, the applicant has put great emphasis on

the risk he runs of being placed on death row in the State of

Virginia, which in his view would constitute inhuman treatment. On

this specific point, my opinion is as follows:

a) It is difficult to admit that, while the death penalty

in itself is acceptable under the Convention, the procedures

surrounding it, which are aimed at giving the sentenced

person a maximum of legal security and protection, would

violate the Convention.

b) On this point, it is also difficult to distinguish the

present case from the Kirkwood case (D.R. 37 p. 158) where

the Commission found that the death row phenomenon as it

existed in California did not violate Article 3. The

statistical figures regarding the average length of

placement on death row in California and Virginia do not

seem to me to be so different as to justify a different

conclusion in regard to Article 3.

c) Although there are allegations of a very harsh prison

regime for death row inmates in Virginia, I do not find

it established that the applicant, if he was sentenced to

death, would be likely to be subjected, pending further

proceedings, to treatment which would as such be contrary

to Article 3.

8. One special feature in the present case is the fact that the

applicant's extradition has also been requested by the Federal

Republic of Germany which, on the basis of the applicant's

nationality, has jurisdiction over the crimes the applicant is

accused of having committed. However, I do not consider it to be

of any importance for the issue under Article 3 whether the applicant

could also be extradited to another country. In my view the question

whether his extradition to the United States would violate Article 3

should be answered exclusively on the basis of an assessment of the

risks he would run in the United States. The guarantee of Article 3

is of a fundamental and absolute character, and if the treatment which

the applicant may expect after extradition to the United States is of

sufficient severity, there is a breach of Article 3 irrespective of

what alternative lines of action would be open to the United Kingdom

Government.

9. However, there is one other feature of the present case which

distinguishes it from the Kirkwood case, and that is the applicant's

young age in combination with his mental state at the time when the

crimes were committed. In this respect, I recall that there are other

international conventions which expressly prohibit the death penalty

from being imposed on a person who, at the time of the commission of

the crime, was below 18 years of age. Such a prohibition is contained

in Article 6 of the International Covenant on Civil and Political

Rights and Article 4 of the American Convention on Human Rights.

These provisions are based on the humanitarian consideration that a

young - and still immature - person whose development into adulthood

has not yet been completed should not be deprived of his life even if

he has committed a crime which as such is punishable by death.

10. It is true that Article 2 of the European Convention does not

lay down a similar age-limit. However, this difference is hardly due

to a difference of views on the question of substance. The

explanation is rather that the European Convention was adopted already

in 1950 and the other conventions much later (the International

Covenant in 1966 and the American Convention in 1969). The more

recent conventions could therefore well be relevant to the consideration

of when the imposition of the death penalty could exceptionally raise

a problem in relation to Article 3 of the European Convention. In

this context it would seem justifiable also to take into account the

changing attitudes in the Convention States in regard to the use of

capital punishment.

11. The applicant is charged with crimes committed when he was

just over 18 years of age. Although he had passed the age-limit

indicated in the aforementioned conventions, he was still a young

person who had not yet reached his full maturity. Moreover, there is

psychiatric evidence indicating that the applicant suffered at that

time from an abnormality of mind caused by his relationship with his

girlfriend. In these circumstances, and in view of the risks which

the applicant's extradition to the United States under the present

circumstances would entail for him, I consider that extradition

would constitute a breach of Article 3 of the Convention.

&_Opinion concordante de MM. J.C. SOYER et A. WEITZEL&_

Nous pensons qu'en l'espèce, vu les assurances dont le

Gouvernement britannique fait état, il n'existe pas de risque réel,

pour le requérant, d'être condamné à mort, puis placé dans le "couloir

de la mort", après son extradition vers les Etats-Unis. Ainsi la

décision d'extradition prise par le Royaume-Uni ne peut-elle pas

entraîner, dans les circonstances de la cause, une violation de

l'article 3 de la Convention.

Mais nous pensons, en outre, que même si ce risque se

réalisait, une telle violation ne s'ensuivrait pas.

En effet, la situation subie par le requérant résulterait

alors d'une condamnation à la peine capitale, et du sursis à son

exécution pour un temps incertain, mais long de plusieurs années,

cette incertitude constituant - selon la thèse ici considérée - un

traitement prohibé par l'article 3 de la Convention.

Or, si l'on envisage en premier lieu la condamnation à mort,

celle-ci - comme le relève la décision de la Commission - est admise

par la Convention elle-même, sous des conditions, explicites ou

implicites, dont nul ne doute qu'elles se trouveraient réalisées lors

du procès du requérant aux Etats-Unis.

Ces conditions sont les suivantes : que la condamnation soit

légalement prévue ; qu'elle intervienne en punition d'un crime d'une

gravité majeure, tel que le fait de priver une ou plusieurs personnes

de leur droit à la vie, intentionnellement ; qu'enfin la condamnation

ne soit prononcée qu'à l'issue d'un procès équitable, devant un

tribunal indépendant et impartial, après d'ailleurs l'épuisement

éventuel des nombreuses voies de recours instituées en faveur du

condamné.

Or, le sursis à exécution de la sentence capitale, élément

qu'il faut examiner en second lieu, sursis très long le cas échéant,

a pour raison, précisément, l'exercice de telles voies de recours,

lesquelles ont pour raison d'être d'offrir au condamné toutes les

chances d'échapper à l'exécution.

Ces voies de recours, ayant pour conséquence le placement du

condamné dans "le couloir de la mort", visent donc à le garantir contre

tout risque d'arbitraire. Elles traduisent de plus, par l'abondance

des interventions judiciaires, le désir de respecter la prééminence du

Droit dans la réaction sociale contre le criminel.

On observera du reste que de telles voies de recours, ouvertes

au bénéfice du condamné, ne se développent pas, pour la plupart,

contre son gré, mais à son initiative ou du moins avec son accord.

Il nous paraît dès lors impossible, devant une telle

situation, d'y voir une violation de l'article 3. Il s'ensuivrait

d'ailleurs un résultat irrationnel : on parviendrait ici, par le jeu

de la Convention, à paralyser l'application de la peine de mort dans

un Etat non partie à la Convention (tel les Etats-Unis), alors que la

Convention elle-même légitime cette peine de mort.

Reste à vérifier si les conditions de détention dans le

couloir de la mort ne constituent pas, à elles seules et en

elles-mêmes, un traitement contraire à l'article 3 de la Convention.

A cet égard, on notera que ces conditions, bien que fort

sévères, sont proportionnées tant à la gravité du crime commis qu'aux

impératifs de la sécurité pénitentiaire.

Cela résulte des prescriptions minutieuses, en ce sens et Ã

cette fin, que le règlement pénitentiaire établit ; cela résulte aussi

du recours à justice, très largement ouvert au condamné détenu, de

façon à garantir le respect du règlement pénitentiaire, dans son

application concrète.

Toutes ces raisons nous conduisent à conclure, comme la

majorité de la Commission, mais pour les motifs ci-dessus exprimés,

qu'aucune violation de l'article 3 de notre Convention ne peut être

reprochée, dans les circonstances de l'espèce, au Royaume-Uni.

&_Concurring opinion of Mrs. J. Liddy&_

According to the Commission's case-law the responsibility

under the Convention of the extraditing State will only arise if the

risk of severe treatment is serious. In the present case, the

respondent Government, mindful of its obligations under the

Convention, was in a position to engage in what it referred to as

important and sensitive diplomatic contacts with the requesting

country. In consequence, it has been able to satisfy itself not only

as to the unlikelihood of the death penalty being imposed in the event

of conviction, but also to conclude that even if the death penalty

were to be imposed initially "At the end of the day, for diplomatic

reasons, we, the United Kingdom Government, are satisfied that the

assurance that has been given will be effective to ensure that the

death penalty will not be carried out".

In assessing whether the applicant will actually be exposed to

the risk he complains of, that is, a possible eight year period on death

row, culminating in his execution, I attach considerable weight to

this conclusion of the respondent Government, formulated in the

circumstances of this case and expressed at the oral hearing of

10 November 1988. I also attach considerable weight to the

information given to the United Kingdom Parliament on 10 March 1987

concerning a "clear understanding" that the death penalty will not be

carried out in cases where a written undertaking to represent the view

of the United Kingdom has been obtained (see para. 43 of the Report).

On this basis I have come to the conclusion that the

extradition of the applicant, in the particular circumstances of this

case, would not constitute a violation by the respondent Government of

its obligations under Article 3.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________________

8 July 1988 Introduction of the application

21 July 1988 Registration of the application

Examination of

the admissibility

11 August 1988 The President of the Commission invites

the Government to submit observations

on the admissibility and merits of the

application and makes an indication under

Rule 36.

9 September 1988 The Commission prolongs the Rule 36 indication

until 14 October 1988.

9 September 1988 The Government's observations submitted

4 October 1988 Applicant's observations in reply are submitted

13 October 1988 Commission's deliberations and decision to

invite the parties to a hearing on the

admissibility and merits of the application

and to prolong the indication under Rule 36 until

the date of the hearing.

10 November 1988 Hearing on admissibility and merits.

The parties were represented as follows:

Respondent Government

Mr. M. C. WOOD Agent

Mr. M. BAKER Counsel

Mr. C. OSBORNE Home Office

Mr. N. PARKER Foreign and Commonwealth Office

The applicant

Mr. C. NICHOLLS, Q.C. Counsel

Ms. C. MONTGOMERY Counsel

Mr. R. SPENCER Solicitor

10 November 1988 Decision to declare the application admissible

and to prolong the indication under Rule 36

until 16 December 1988.

Examination of

the merits

1 December 1988 Government's further observations

10 December 1988 Commission prolongs the indication under

Rule 36 until further notice

13 December 1988 Applicant's further observations

16 January 1989 Commission's deliberations on the merits

and final votes

19 January 1989 Adoption of the Report

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SOERING v. THE UNITED KINGDOM

SOERING v. THE UNITED KINGDOM