DECISION OF THE COMMISSION

                      AS TO THE ADMISSIBILITY OF

                      Application No. 14038/88

                      by Jens SOERING

                      against the United Kingdom

        The European Commission of Human Rights sitting in private

on 10 November 1988, 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.G. SCHERMERS

                  H. DANELIUS

                  J. CAMPINOS

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  H.C. KRÜGER Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 8 July 1988

by Jens Soering against the United Kingdom and registered

on 21 July 1988 under file No. 10438/88;

        Having regard to

-       the report provided for in Rule 40 of the Rules of Procedure

of the Commission;

-       the written observations submitted by the respondent

Government on 9 September 1988 and the observations in reply submitted

by the applicant on 4 October 1988;

-       the parties' oral submissions at the hearing before the

Commission on 10 November 1988;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant, Mr.  Jens Soering, is a German citizen, born

in Thailand on 1 August 1966.  He has lived in the United States of

America since he was 11 years old.  The present application arises

out of his pending extradition to the United States inter alia on

charges of capital murder in respect of offences which were allegedly

committed when he was 18 years of age.  He is at present detained at

HM Prison, Wormwood Scrubs, London, England.

        The applicant is represented by Messrs.  Powell Magrath and

Spencer, solicitors, London, and Mr.  Colin Nicholls, Q.C., and

Ms.  Clare Montgomery of counsel.

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

submissions may be summarised as follows:

        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.

        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.  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.        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.

        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.

        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".

        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."

        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.

        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.

        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 gave evidence

that he admitted the killings.  A similar admission was apparently

made to a German Public Prosecutor who also interviewed the applicant.

The applicant 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 Charlottsville 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.

        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

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

constitute a defence of diminished responsibility reducing the offence

from murder to manslaughter.

        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.  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."

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

petition for leave to appeal against the decision of the Divisional

Court.

        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.

        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.        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.

        Relevant domestic law and practice

        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.

        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.

        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.  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.

        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).

        Under the rule of speciality a defendant cannot be tried on his

return to the United States for any offence which is not disclosed by

the facts on which his surrender has been based.

        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."

        The exercise of this discretion is incorporated in the general

discretion vested in the Seretary of State by virtue of Section 11 of

the 1870 Act.

        Where extradition requests are received in respect of the same

crime from two different States, priority is given to that which is

first in time.  If both 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.

COMPLAINTS

        Article 3 of the Convention

        The applicant submits that there is serious reason to believe

that he will be subjected to inhuman and degrading treatment and

punishment in contravention of Article 3 of the Convention.  Such

inhuman and degrading treatment and punishment arises from the

exceptional and inordinate delay in carrying out the death penalty in

Virginia, together with other aggravating conditions.

        Article 6 of the Convention

        The applicant submits that he is without the means to defend

himself.  In the legal proceedings in England he was defended on legal

aid.  His father has funded his application to the Commission and his

Attorneys in the United States to the extent immediately necessary for

his trial in the United States.  The applicant has serious reasons to

believe that his father will not be able to fund the voluntary appeals

which he may require to pursue in order to avoid the imposition of the

death penalty.  Under the provisions of Virginia law the accused may

be granted legal aid for the purpose of his automatic appeal to the

Supreme Court of Virginia.  There are eight other appeals he can make

which will prolong his life by 6 to 10 years.  However, for these

appeals legal aid is not available, unlike the position in other

States which have the death penalty.  The applicant submits that this

constitutes a breach of Article 6 para. 3 (c) of the Convention.

        Article 13 of the Convention

        The applicant submits that he has no effective remedy before a

national authority as required by this provision.  The courts, in

reviewing the decisions of the Secretary of State are restricted to

a consideration of whether it infringes the "Wednesbury principles"

(i.e. that no authority properly directing itself on the relevant law

and acting reasonably could have reached it).  The Secretary of

State's decision is not therefore effectively reviewable by the courts

on the basis of the Convention.  Moreover, the Secretary of State is

not required to have regard to the Convention when exercising his

discretion under Section 11.

        It is further submitted that the Secretary of State in

deciding whether the applicant should be extradited cannot be regarded

as impartial or as enjoying the safeguards of judicial independence.

PROCEEDINGS BEFORE THE COMMISSION

        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 an opportunity to

examine the application.

        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 an opportunity to examine the case

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

(3 - 14 October 1988).

        The respondent Government's observations were received on

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

on 4 October 1988.

        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.

        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.

        The hearing before the Commission was held on 10 November

1988.        The parties were represented as follows:

Respondent Government

Mr.  M. C. WOOD      Foreign and Commonwealth Office, Agent

Mr.  M. BAKER        Counsel

Mr.  C. OSBORNE      Home Office                    )

                                                   ) Advisers

Mr.  N. PARKER       Foreign and Commonwealth Office)

The applicant

Mr.  Colin NICHOLLS, Q.C. Counsel

Ms.  C. MONTGOMERY        Counsel

Mr.  R. SPENCER           Solicitor

        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).

SUBMISSIONS OF THE PARTIES

The respondent Government

        Article 3 of the Convention

        The Government indicated that, for purposes of the hearing on

the admissibility and merits of the case, they accepted the

Commission's case-law as set out in in the Kirkwood case (No.

10479/83),  Dec. 12.2.84, D.R. 37, pp. 158-191) that an issue could

arise under Article 3 of the Convention in a case of extradition.

1.  Risk of imposition of the death penalty

      The Government submit that the applicant does not run a

serious risk of receiving the death penalty and being subjected to

the "death row" phenomenon.  They refer to the assurance they have

received from the Attorney for Bedford County and the existence of

important factors of mitigation likely to be taken into account by the

sentencing judge and jury.

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

faces a charge carrying the death penalty in one of the States, the

practice of the Secretary of State pursuant to Article IV of the

Extradition Treaty is to secure an assurance from the prosecuting

authorities of that 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.  It would be a fundamental blow to the extradition arrangements

between the United Kingdom and the United States if the death penalty

were carried out on an individual who had been returned under those

circumstances.  No fugitive surrendered under the Treaty with the

United States has been executed.  The practice of the respondent

Government of seeking assurances was described in the following terms

by Mr.  David Mellor, then Minister of State at the Home Office, during

a parliamentary debate on the Criminal Justice Bill on 10 March 1987:

"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."  (Col. 955 Hansard)

        Although it is true that only the State authority can decide

whether assurances about the death penalty can be given, the United

States Government have recently assured the Government of the United

Kingdom that if the State gives an assurance that the death penalty will

not be imposed or carried out, the Federal Government can and will give

the United Kingdom a formal and binding undertaking to that effect.

        In the present case, the Attorney for Bedford County,

Virginia, has provided an assurance that such a representation will be

made to the judge and his affidavit to this effect was transmitted by

the Governor of Virginia in support of the extradition request and

certified by the United States Department of Justice.  This assurance

satisfies the United Kingdom Government of the unlikelihood of the

death penalty being imposed and of the unlikelihood of the applicant

being placed on death row.  The seeking of such an assurance is an

important and sensitive diplomatic matter between sovereign States.

As such an ineffective assurance would have very serious consequences

for the extradition arrangements between the two countries.

Furthermore, the present assurance is the most that would be

permissible or acceptable under Virginian law, because neither the

Government nor the Attorney General has the authority to dictate to

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

sentence to be imposed, although it is true that a State prosecutor

may in certain circumstances be prepared to undertake not to seek the

death penalty.  In the present case the State prosecutor has

determined, on his assessment of the evidence, that a crime of capital

murder has been committed and he is therefore bound under Virginian law

to seek the death penalty.  This is the only decision open to him.

        The sentencing judge is under a legal duty to evaluate

independently whether the death sentence is "appropriate and just"

having regard to "any and all" relevant facts, including the

representation made in the name of the United Kingdom (Virginia

Code Section 19.2.264.5).  It is thus not correct that the

sentencing judge is precluded by Virginian law from taking the United

Kingdom's representation into account.  The representation by the

Governor may also be considered in any application for clemency.

2.  The proceedings in Virginia

        Even if the applicant acknowledges his participation in the

crime, the medical evidence already disclosed constitutes a strong

argument for a defence of insanity, i.e. that at the time the

offences were committed he was unable to distinguish right from wrong,

or that although he knew that what he was doing was wrong, he was

driven to do it by an irresistible impulse.

        In a separate sentencing procedure, the jury can only impose

the death penalty if they are satisfied beyond reasonable doubt and

unanimous in their view either that there is a probability that the

applicant would commit further criminal acts of violence that would

constitute a continuing serious threat to society or that his conduct

was "outrageously or wantonly vile, horrible or inhuman".

        The jury must also consider any evidence put forward in

mitigation and for this purpose, capital murder defendants are

entitled under Virginian law to the appointment of a mental health

expert to assist in the preparation and presentation of evidence

relating to the defendant's mental condition.  In addition, the jury

is obliged to take into account certain specific matters, including

the age of the defendant at the time of the commission of the offence,

the lack of any previous criminal activity, the influence of extreme

mental or emotional disturbance of the defendant and any impairment to

his ability to conform to the requirements of the law.  Even if these

matters do not persuade the jury who set the sentence, they must also

be taken into account by the judge who passes sentence.  For this

purpose, the trial judge must order the preparation of an

investigative report detailing the defendant's history and other

relevant facts.  Upon presentation and review of the report, the court

may set aside the sentence of death and impose a life sentence.  The

discretion of the court is thus narrowly channelled to avoid any

arbitrary imposition of the death penalty and is subject to automatic

appellate review by the Supreme Court of Virginia.  That court is

required by law to review the death penalty for arbitrariness and

proportionality in addition to its consideration of any errors in the

trial alleged by the defendant on appeal.  In this respect the Supreme

Court of Virginia in a capital case fully and exhaustively considers

every claim raised by the appellant.

        In the present case the court would be bound to take into

consideration crucial mitigating factors in fixing sentence.  The

applicant was only 18 at the time of the offence.  He had been in no

difficulties with the police and had a high scholastic record.

Furthermore, two eminent psychiatrists who examined the applicant in

England have attested that at the moment of the commission of the

offence his mental responsibility for his acts was substantially

impaired by an abnormality of the mind.

        Against this background the Government submit that he was

unlikely to be sentenced to death.

        It has recently been established under Virginian law that all

indigent prisoners who have been sentenced to death are entitled to

lawyers to assist them to pursue collateral challenges to their death

sentences in state habeas corpus actions (Giarratano v.  Murray, 847

F.2d 1118 - 4th Cir. 1988) (en banc).

3.  Extradition to the Federal Republic of Germany

        The Government are not prepared to extradite or deport the

applicant to Germany in the face of what they see as a legitimate

prior request from the State where the offence was committed.  It is

supported in this conclusion by the fact that the place of commission

of an offence is an important factor for choosing between simultaneous

extradition requests.

        Once the Secretary of State has issued the magistrate with an

order to proceed in an extradition case, he has set in train a

judicial process which he has no power to terminate.  It follows that

if, once an order to proceed has been given pursuant to a request from

one State, a request from a second State is received, the order to the

magistrate to proceed in relation to the first application cannot be

revoked.  It might be possible, once those proceedings were completed,

for the Secretary of State to issue a further order to proceed in

respect of the request from the second State.  However, it may be that

the magistrate would regard such a second request as being oppressive

and therefore dismiss the extradition application.

        In the present case, the extradition request from the Federal

Republic of Germany was not received until some six months after the

order to proceed had been issued in relation to the request from the

United States of America.  The Secretary of State was bound to give

priority to the first request.  Having regard to the uncertainties

involved in the judicial proceedings in respect of the second request,

the Secretary of State would not have been justified in proceeding

with the German request once the judicial proceedings arising out of

the American request were completed.  Moreover, the evidence adduced

in support of the German request would not have been sufficient to

satisfy the requirements of Section 10 of the 1870 Act.

4. Severity of treatment

        Central to the applicant's complaint is the length of time

that will elapse between his being sentenced to death, and his

execution if that sentence is carried out.  The average time between

trial and execution in Virginia is between six and seven years, that

average being based on the seven executions which have been carried

out following unsuccessful appeals, review and applications for

clemency since the reinstatement of the death penalty in Virginia in

1977.        The delays in capital cases are not attributable to the

post-conviction automatic appeal to the Supreme Court of Virginia, a

process which is normally completed within six months of conviction

and sentence.  They are a result of successive collateral attacks in

the State and Federal courts on the final judgment of conviction and

sentence originally imposed by the trial court and affirmed by the

Supreme Court of Virginia on automatic appeal.

        The desire to afford the condemned man every possible avenue

of appeal and review is consequently the cause of the delays.

Manifestly, delay rather than expedition serves the prisoner's

interest when the death sentence has been imposed.  It is the

experience of the Virginia Attorney General's Department that

attornies representing prisoners on death row use every available

tactic to prolong the proceedings.

        As regards the applicant's complaints concerning the prison

conditions which an inmate on death row experiences, the Government

note that inmates who have been sentenced to death are generally

imprisoned at the Mecklenburg Correctional Center, an eight year old

facility.  The size of a prisoner's cell is 10 feet by 71/2 feet.

Prisoners have an opportunity for approximately 71/2 hours' recreation

per week in summer and approximately 5 - 6 hours per week in winter.

Every inmate has a job, cleaning the common areas or cleaning the

recreation yards.  The conditions and facilities are governed by

policies and rules which are set out in documentary form in

Institutional Operating Procedures.  These procedures 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, on access to

attornies and to reading material, and on the conditions governing the

prisoners' work, food and recreation.

        The Government note that the norms embodied in the Operating

Procedures of the Commonwealth of Virginia constitute rights which may

be enforced 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.

Alternatively, these rights may be enforced in separate legal

proceedings against prison officials in the State or Federal courts.

        As regards the method of execution itself, medical experts

with experience of executions by electrocution agree that the subject

is rendered unconscious and incapable of experiencing pain or

suffering, if not actually dead, at the moment of the first electrical

surge.  Furthermore, the Eighth Amendment to the Constitution of the

United States prohibits cruel or unusual punishment and the Supreme

Court of Virginia has rejected the argument that the method of

execution by electrocution in Virginia constitutes such a punishment.

In fact the Virginia procedure is used as a model by other States.

        Furthermore, there is no procedural obstacle or precedent

which would prevent a challenge being made on appeal to the Supreme

Court of the United States that the delays involved constituted cruel

or unusual punishment under the Eighth Amendment.  If such a case were

brought, the Supreme Court would apply its normal standards to

determine whether a writ of certiorari should issue for review of such

a case.

        The Government submit that for the reasons set out above there

is no indication of any arbitrariness or unreasonableness either in

the machinery of justice of the Commonwealth of Virginia or the United

States of America or in the prison regime set up under the State

legislation.

        The fact that the death row phenomenon derives almost entirely

from the fact that prisoners exercise all their collateral rights of

appeal goes to the heart of the dilemma identified by the Commission

in the Kirkwood case arising from the fact that Article 2 of the

Convention expressly permits the death penalty (loc. cit.).  In that

case the Commission found that the delays inherent in death row in

California did not constitute a breach of Article 3 of the Convention

and the Government submit that insofar as the delays exist because of

the availability of avenues of appeal following compulsory review, the

delays in the present case similarly cannot constitute a violation of

Article 3.  As regards the conditions in which prisoners sentenced to

death in Virginia are detained, it appears that the facilities

available for recreation, medical attention and contact with the

outside world are at least as good as those in California.

        In Kirkwood, the Commission noted that it is for individual

High Contracting Parties to decide what conditions should govern their

extradition arrangements with other States and on the manner in which

they are to ensure compliance with the requirements of the Convention

in the exercise of State responsibility in extradition matters.  The

Government accept that the assurance that they have obtained from the

Attorney for Bedford County, Virginia, does not amount to a legal

guarantee that the applicant, if sentenced to death, will have the

sentence commuted.  The Government are, however, satisfied that the

assurance given is the best that can constitutionally be offered under

the law of Virginia.

        Finally, in the Kirkwood case, the Government pointed out that

if the applicant could not be sent to the United States he would be

effectively irremovable and would have to be released from custody and

permitted to remain in the United Kingdom.  If it were possible to

extradite the present applicant to the Federal Republic of Germany, he

would evidently not have to be permitted to remain in the United

Kingdom.  Nevertheless, the Government are of the view that the German

extradition request has no relevance whatsoever to the issue under

Article 3 of the Convention.  Moreover, the availability of

deportation as a practical means of resolving the problems raised by

this application is one which has no relevance at all to any of the

issues of principle or practice which the Commission is called upon to

determine.

        For the reasons given above, the Government submit that the

applicant's complaint that his extradition to the United States of

America will violate Article 3 of the Convention is manifestly

ill-founded or, in the alternative, that there is no violation of the

Convention.

        Article 13 of the Convention

        The inhuman or degrading treatment or punishment upon which

the applicant's complaint is founded is an anticipated violation of

the Convention, and if it occurs it will occur in the United States.

For that violation he claims entitlement to an effective remedy in the

United Kingdom.  The Government submit that an obligation to provide a

preemptive remedy in respect of a breach which may never occur is

liable to create real practical difficulties under Article 13.  These

would relate both to the nature and the task of the domestic authority

charged with responsibility for deciding whether a violation was

likely and to the nature of the remedy required in order to avoid a

violation of Article 3.

        In any event, the applicant has not substantiated his claims

under Article 3 of the Convention and in such circumstances the

Government do not consider that the applicant's claim can be described

as arguable.  In this connection, the Government submit that it

follows from the judgment of the Court in the case of Boyle and Rice

(Eur.  Court H.R., judgment of 27 April 1988, Series A No. 131) that

the circumstances will have to be very exceptional for a complaint

that is manifestly ill-founded to be nevertheless arguable.  If,

however, the Commission should conclude that there is an arguable

claim in this case, the Government submit that the remedies available

are in any event effective.

        It is accepted that no court in the United Kingdom has power

to review a discretionary decision by the Secretary of State to make

an extradition order in the face of a claim by the person concerned

that he would risk facing inhuman and degrading treatment if

extradited.  However, it is submitted that the following remedies

available to the applicant, taken on their own or in aggregate, are

sufficient to satisfy the requirements of Article 13 in relation to a

claim that the extradition of a person to a particular country is

likely to lead to his being subjected to treatment that contravenes

Article 3.

        The 1870 Extradition Act provides that decisions taken in

extradition proceedings may be challenged in the first instance before

a magistrate and then by way of an application for habeas corpus.  Such

an application is made to the Divisional Court and, with leave, to the

House of Lords.  In habeas corpus proceedings the court is empowered

to review all the evidence adduced in support of extradition and to

assess the compatibility of the extradition with the provisions of the

Extradition Act and the relevant Extradition Treaty between the United

Kingdom and the requesting State.  If habeas corpus applications are

unsuccessful the prisoner may petition the Secretary of State.  On a

petition to the Secretary of State the case is considered afresh and

all the matters that the petitioner chooses to adduce in support of

his case are taken into account.  In exercising his discretion under

Section 11 of the 1870 Act, the Home Secretary is not acting as a

judge in his own cause.  The Court recognised in the Silver case (Eur.

Court.  H.R., judgment of 25 March 1983, Series A No. 61) that in

certain circumstances a petition to the Home Secretary would be an

effective remedy and having regard to the obligation of the Secretary

of State to carefully consider all the applicant's representations,

including the United Kingdom's obligations under the Convetion, it is

submitted that the right to petition the Home Secretary affords an

effective remedy for the purposes of Article 13.

        Moreover, the availability of judicial review proceedings in

respect of that decision provides a further safeguard against any

illegal, irrational of improper exercise of discretion by the

Secretary of State.  An interim injunction may be granted against the

Crown as a result of such proceedings (R. v.  Licensing Authority ex

parte Smith, Kline & French Laboratories Ltd., decision of the Court

of Appeal dated 16 August 1988).

The applicant

        Article 3 of the Convention

1. Risk of imposition of the death penalty

        The applicant submits that Mr.  Updike, the Attorney for Bedford

County, has declared publicly that he is seeking the death penalty in the

applicant's case and that he proposes to give no assurance to the United

Kingdom Government further to that which he has already provided.  He has

also told the applicant's United States attorney that he will not negotiate

a plea because it is his policy to take all death penalty cases to trial

for determination by the court and jury.

        The assurance which has been provided by Mr.  Updike can have

no effect in a Virginian court since it is not a factor to be

considered by it under the relevant Virginian statute and its

consideration would inevitably raise constitutional issues of profound

importance.  If the jury returns a death sentence verdict the judge

must impose a death sentence unless good cause is shown that the death

sentence should be set aside (Virginia Code, Section 19.2.264.5).

Neither the wish of the United Kingdom Government nor the future

foreign relations of the United States would constitute good cause as

to the issue of proportionality of sentence under Virginian law.

Nor is the Governor of Virginia required to have any regard to

the wishes of the United Kingdom Government.

        Moreover, the assurance given is not an assurance that the

death penalty will not be carried out, and the statement by Mr.  David

Mellor to the House of Commons on 10 March 1987 is not supported by

the terms of the assurance.  Nor is it the best assurance that the

Attorney for Bedford County can provide.  He could agree to reduce the

charge to first degree murder and thereby avoid the death penalty.

Equally, the Governor of Virginia could agree that if the jury

returned a verdict of death, then the sentence would not be carried

out or that he would commute the sentence to life imprisonment or

grant a permanent reprieve to the applicant.

        The supporting assurance given by the Federal Government of

the United States similarly fails to amount to an adequate assurance

that the applicant will not be sentenced to death.  The statement that

the death penalty has never been carried out following such an

assurance is inappropriate since the circumstances have never arisen

in previous extraditions and it is of no comfort to the applicant that

his execution may be harmful to Anglo-United States extradition

arrangements.  In fact, the subsequent experience of both Errico (No.

12553/86, Dec. 7.7.87, to be published in D.R.) and Kirkwood (loc.

cit.) indicates that the State authorities do not consider themselves

inhibited by such an assurance.

        The applicant refers to two recent cases concerning extradition

from the United States where effective assurances have been given

by the prosecution authorities that the death penalty will not be

imposed, namely, the case of Hamadei under a Federal indictment on

extradition from the Federal Republic of Germany and the case of Haake

on extradition proceedings from Spain to the State of Florida.  The

applicant submits that if binding assurances could be given in those

cases, there can be no reason why such an assurance cannot be given in

his case.  Although in Hamadei's case the indictment was Federal, in

the Haake case the assurance given consisted of an undertaking by the

State Attorney not to seek "the imposition of, or obtain the death

penalty ...".

2.  The proceedings in Virginia

        In Virginia a plea of diminished responsibility or its

equivalent is not a defence to a capital murder charge.  In its

discretion a jury may sentence a prisoner to life imprisonment on

grounds of mental illness but it is not obliged to do so and there are

cases where it has not done so.  Neither State nor Federal law

therefore prohibits the execution of persons who were mentally ill at

the time of commission of an offence if they are otherwise mentally

competent at the time of their execution.  There is strong psychiatric

evidence that the applicant was mentally ill at the time it is alleged

he committed the offence.  It is not contended, however, that the

applicant was insane within the meaning of that concept as defined

under Virginian law, rather that he suffered from an abnormality of the

mind at the time the offence was committed.

        The applicant has received psychiatric treatment in prison

whilst awaiting extradition.  Virginia has very recently proceeded

with the execution of a man who was much more seriously mentally ill

than the applicant (Morris Odell Mason).  Moreover, extreme mental or

emotional distress may, as in the case of Morris Odell Mason, become

an aggravating factor as opposed to a mitigating factor when the jury

or judge are considering the likelihood that a prisoner will commit

further dangerous criminal acts.

        There is consequently a serious risk that the applicant will

also be executed and it is submitted in this respect that the

execution of a person who was mentally ill at the time the offence was

committed constitutes inhuman and degrading treatment and punishment and

is prohibited by Article 3 of the Convention.

        The judicial system in Virginia contains further

elements of arbitrariness not examined in Kirkwood.  In particular,

the applicant's age at the time of the offence would only be a factor

to be weighed by the jury and would not constitute a bar to the

imposition of the death penalty.  Furthermore, the wounds sustained

by Mr. and Mrs.  Haysom, even considered alone, would constitute an

aggravated battery sufficient to satisfy the requisite test of

"vileness" for the imposition of the death penalty under Virginia

law.  As a matter of practice, therefore, the burden of proof will

effectively have shifted to the applicant at the sentencing stage to

submit evidence in mitigation in order that the death penalty should

not be imposed.  Moreover, the law of Virginia exempts Ms.  Haysom from

the death penalty on the basis of the "triggerman" principle but

evidence as to the result of her trial for the same crime is

irrelevant to the jury's determination of the appropriate sentence in

the applicant's case.

        Under Virginian law the defendant may be granted legal aid

for the purpose of his automatic appeal to the Supreme Court of

Virginia.   There are, however, eight other appeals in respect of

which it is not established under Virginian law whether legal aid is

available.

        The Virginia Supreme Court's review of the death sentence

is limited to issues of arbitrariness and proportionality.  It is

also restricted to objections which have been taken at trial under the

"contemporaneous objections rule".  In its review, the Supreme Court is

restricted under the Code in its comparison of the facts of the case

on review to cases in which the death penalty was affirmed as opposed

to those in which it has been overturned.  If juries generally impose

the death sentence for conduct similar to that of the defendant, then

the sentence is not excessive or disproportionate.  Since 1977 that

court has affirmed all but six of the 53 death sentences it has

reviewed, i.e. 88%, as compared with the national average of 50%.

The Court has never found that a capital sentence was imposed "under

the influence of passion, prejudice or any other arbitrary factor" or

that a sentence of death was "excessive or disproportionate to the

penalty imposed in similar cases".

       The restricted nature of the automatic appeal to the Supreme

Court of Virginia means that the applicant's case, unlike that of

Kirkwood, is not one where the prisoner fails in a comprehensive

automatic appeal system and chooses voluntarily to repeat his appeals

in the hope of succeeding eventually.  It is rather a situation in

which he is denied a comprehensive right of appeal at an early stage

and subjected to the death row phenomenon because of the limitations

of the appeal system.

         Since 1977 no Governor of Virginia has commuted a death

sentence.  Furthermore, Virginian law places restrictions on the

Governor's exercise of that discretion which are not found in the

laws of other States.

3.     Extradition to the Federal Republic of Germany

        The applicant submits that the existence of a competing

extradition request in respect of the offence for which his

extradition is sought from the Federal Republic of Germany is,

contrary to the Government's submission, a highly relevant factor in

the determination of the applicant's claims under the Convention.

This factor was not present in the Kirkwood case.

        The view of the Director of public prosecutions of the United

Kingdom that the applicant's tape-recorded confession to a public

prosecutor of the Federal Republic of Germany would not amount to a

prima facie case against the applicant is incorrect.  The decided

cases in England relating to sufficiency of evidence in extradition

cases make it clear that so long as there is some evidence, the

magistrate may commit the applicant for return (e.g.  R. v.  Domat

[1986] 82 Cr App R 173).  A confession statement would clearly

constitute a prima facie case that the applicant had committed the

offence.  Moreover, the view of the Director of Public Prosecutions is

inconsistent with that of the Government of the Federal Republic which

clearly considers that there is sufficient evidence to support its

warrant of arrest.

        Although there is no means of compelling Government witnesses

in the United States to give evidence in Germany, most of the relevant

witnesses in the applicant's case appear to be United States

officials.  Moreover the applicant's admissions were also witnessed by

various British police officers.  It is inconceivable that witnesses

would not be willing to give evidence in the Federal Republic if

requested to do so and on receipt of an undertaking that they would be

paid their expenses.  In the Hamadei case, the German Government were

able to secure the testimony of numerous United States citizens to

establish the case against him.  It is also inconceivable that a

magistrate in the United Kingdom would regard German extradition

proceedings as oppressive in the applicant's case in circumstances

where they are based on humanitarian considerations and particularly

if a decision to extradite to Germany had been taken in pursuance of an

indication or decision of the Commission.

        The applicant can also be deported to the Federal Republic of

Germany, which is obliged to receive him as one of its citizens.  The

applicant is liable to such deportation as an illegal entrant or as an

overstayer under United Kingdom law and he would be arrested

immediately upon his return to Germany.

4.  Severity of treatment

        The rights guaranteed under Article 3 of the Convention are

absolute rights which do not permit any margin of appreciation in the

State authorities as to the scope of their application or as to the

measures necessary to protect them.  The concept of inhuman or

degrading treatment is, however, capable of expansion with time and

the applicant submits in this respect that it is the emerging State

practice of European countries to secure an adequate assurance that

the death penalty will not be carried out in the case of extradition

to the United States.  This is borne out by the cases of Haake and

Hamadei described above.

        The only relevant factor is whether there exists an objective

danger of treatment contrary to Article 3 for the person extradited,

and the applicant contends that an assessment of the situation

existing in Virginia indicates that there is a "real" risk that his

rights under Article 3 will be violated.  He further contends that

there are factors of unreasonableness and arbitrariness present in his

case which were not present in Kirkwood.  The applicant also points out

that the conditions in the United States have not changed in the way

anticipated by the Commission in Kirkwood.

        Since 1976 seven people have been executed in Virginia.

Currently thirty-six people are on death row, all men, eighteen black

and eighteen white.  The length of time between sentencing and

execution depends on the number and complexity of appeals.  Information

available from the Capital Punishment Project in New York shows that

the time has varied between 3.5 and 8 years and can possibly be as

long as 12 years.  The average is between six and eight years and the

minimum, discounting the case of a person who waived his right to

appeal, is 4.5 years.  The applicant submits that both the greater

frequency of execution in Virginia as opposed to California and the

longer periods of delay in Virginia are reasons to distinguish the

applicant's case from that of Kirkwood.  As submitted above, it is a

distinguishing feature of the present case that the delays in the

appeal system of Virginia do not arise from a situation where the

prisoner chooses voluntarily to successively repeat a comprehensive

appeal but rather one where the initial automatic appeal is inadequate

and where the subsequent appeals may be seen as attempts to remedy

that inadequacy.  The death row phenomenon is further aggravated by

delays in executions consequent upon the massive backlog of prisoners

currently awaiting execution in the United States.

        The treatment to which the applicant will be exposed is

therefore not necessary to issue a full and just review.  Furthermore,

and having regard in particular to the applicant's age and mental

disability, it is likely that in waiting for his execution over a

substantial period of time his personality will develop and change so

that although a sentence of death may have been appropriate at the

time sentence was passed, it may no longer be so at the time of

execution.  The applicant will in effect be a different person.  The

cruel effect of the death row phenomenon in the applicant's case is

further exacerbated in that the treatment to which he will be exposed

may aggravate his mental disability.

        As regards prison conditions on death row in Virginia, the

actual livable area of a prisoner's cell is about 5 feet by 6 feet and

the actual recreation time averages six hours per week when the

prisoners are not locked down.  A lock down occurs for the

actual or imagined discipline violation of any death row inmate and

non-offending inmates are locked down along with the offending ones.

Irrespective of the provisions of the operating procedures, it is

common practice that death row inmates are locked down for long

periods each year.  In 1987 the death row inmates were locked down for

approximately five months, thus making the average recreation time for

a death row prisoner less than three hours a week.  During a lock

down, the prisoners are not allowed out of their cells for any reason

other than to eat.

        Each inmate's job lasts only four to six weeks per year during

which he is paid $27 per month.  The actual administration of health

care to an inmate is meagre.  One death row inmate has died and two

others have committed suicide since 1977.  There is no physician-

patient confidentiality and routine psychiatric treatment consists of

2-3 minute examination followed by medication.  Over one half of all

death row inmates are receiving large doses of thorazine, a

psychotropic drug.  Furthermore, a prisoner must petition the Governor

of the prison in order to obtain a contact visit.  Since 1977 the

Governor has allowed only 2 contact visits, both of which have

occurred the day before execution.

        As regards the method of execution, the applicant notes that

only twelve States of the 37 with the death penalty now use

electrocution.  In Virginia this process is achieved by administering

a 55-second electric shock to the prisoner's body which has the effect

of causing blisters to appear on the prisoner's legs, his skin to

stretch and smoke to emanate from his body.  There are hours of

preparation beforehand including three hours during which the prisoner

waits in a cell after his head and his leg have been shaved.  This is

a particularly horrifying and degrading form of punishment which has

been held not to constitute cruel and unusual punishment under

Virginia and United States law (Glass v.  Louisiana, 105 S. Ct 2159

(1985)).

        Article 13 of the Convention

        Contrary to the submissions of the Government, it follows from

the decision of the High Court in the Kirkwood case that the Secretary

of State is under no obligation as a matter of domestic law to have

due regard to the Convention in the exercise of his discretion under

Section 11 of the 1870 Act (R. v.  Secretary of State for the Home

Department ex parte Kirkwood [1984] 2 ALL ER 390).  The ruling of the

High Court in the Kirkwood case reflects the "dualist" principle of

United Kingdom law that treaties which have been ratified do not

confer rights on individuals (Republic of Italy v.  Hambro's Bank

[1950] 1 All E.R. 430).

        Moreover, the mere fact that the Secretary of State in the

applicant's case may have regard to the provisions of the Convention

does not provide the applicant with a domestic remedy for a breach of

the Convention.  Nor can the Secretary of State be regarded as

sufficienty impartial and independent in this respect.  Judicial

review does not provide a safeguard against such breach since, as in

the case of Kirkwood, the court is only concerned as to whether the

Secretary of State's decision was unreasonable within the meaning of

the Wednesbury principles.  Furthermore, although it is accepted

on recent authority that a court may grant an interim injunction

against the Crown, that fact is irrelevant to the court's jurisdiction

to apply the provisions of the Convention.

        In addition, there is no statutory right to petition the

Secretary of State to exercise a general discretion not to order the

return, although Kirkwood, Errico and the applicant have all adopted

this procedure simultaneously with their applications to the

Commission under the Convention.  In this respect the applicant

contests the assertion of the Government that the dismissal of the

petition on the one hand and the making of an order for return on the

other, i.e. the acts which constitute the breach of Article 3 of the

Convention, are subject to judicial review.

THE LAW

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

Convention of his imminent extradition to the Commonwealth of Virginia

in the United States of America on a charge of capital murder.  He

also complains under Articles 6 para. 3(c) (Art. 6-3-c) and 13 (Art.

13) of the Convention.

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

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

degrading treatment or punishment."

        Article 6 para. 3 (c) (Art. 6-3-c) of the Convention reads as

follows:

"3.   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;"

        Article 13 (Art. 13) of the Convention reads 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."

        The applicant first submits that there is serious reason to

believe that he would, if extradited to Virginia, be subjected to

inhuman and degrading treatment and punishment in contravention of

Article 3 (Art. 3) of the Convention.  He considers that there is a

serious likelihood that he will be convicted and sentenced to death

and subjected to the "death row phenomenon" while awaiting the outcome

of various State and Federal appeals against the death penalty.  He

points out that in Virginia the average period spent on death row

awaiting the outcome of collateral State and Federal appeals is

between six and eight years.

        The applicant states that this likelihood exists

notwithstanding the assurance that has been given to the respondent

Government by the Attorney of Bedford County, Virginia, that should

the applicant be convicted of the offence of capital murder as

charged, a representation would be made in the name of the United

Kingdom to the judge at the time of sentencing that it was the wish of

the United Kingdom that the death penalty should not be imposed or

carried out.  In the applicant's submission, if a jury returns a death

sentence verdict, the judge must impose a death sentence and is under

no obligation under Virginian law to take such an assurance into

account.  Moreover, it is contended that the respondent Government

could have secured a better assurance, namely that the Attorney of

Bedford County agree to reduce the charge to first degree murder, or

that the Governor of Virginia agree to commute a death sentence to

life imprisonment.

        The applicant also claims that he suffered from a mental

abnormality at the time of the commission of the alleged offence such

as to substantially impair his responsibility for his acts and that

this circumstance is neither a defence to a charge of murder under

Virginian law nor a ground on which the court is precluded from

imposing the death sentence.

        The applicant submits that, in such circumstances, the

respondent Government should give priority to a later request for the

applicant's extradition in respect of the same offences to the Federal

Republic of Germany, of which he is a national.

        The applicant complains further that although under Virginia

law the accused may be granted legal aid for the purpose of his

automatic appeal to the Supreme Court of Virginia, there are eight

other voluntary appeal procedures for which legal aid is not

available.  The applicant has serious reason to believe that he will

be unable to fund the voluntary appeals which he may require in order

to avoid the imposition of the death penalty, and submits that the

denial of legal aid in such circumstances constitutes a breach of

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

        Finally, the applicant complains under Article 13 (Art. 13) of

the Convention that there exists under United Kingdom law no effective

remedy in respect of his Article 3 (Art. 3) complaint that he is

likely to be subjected to the "death row phenomenon".

        The respondent Government observe that it cannot be assumed

that the applicant will actually be sentenced to death, having regard

to important mitigating facts such as his age, mental condition and

absence of criminal record.  They point out that the automatic appeal

to the Supreme Court of Virginia is normally completed within a six

month period and that the length of time spent on death row in

Virginia is determined by the exercise by prisoners of collateral

rights of appeal to both State and Federal courts following the review

by the Supreme Court.  The Government submit that no issue under

Article 3 (Art. 3) of the Convention can arise for delays that are

derived substantially from the voluntary exercise of such appeal

rights.

        The Government accept that the assurance they have received

does not amount to a legal guarantee that the applicant, if sentenced

to death, will have the death sentence commuted.  They are

nevertheless satisfied that the assurance given is the best that can

constitutionally be offered under the law of Virginia.  Moreover, it

is not open to the Federal authorities to compel a State to give a

stronger assurance.  They point out that, within the diplomatic

context of an extradition treaty, both the respondent Government and

the United States are aware that an ineffective assurance could have

very serious consequences for the extradition arrangements between the

two countries.  It is therefore likely that the assurance will have

the desired effect.

        Reference is also made to the existence of important

safeguards against the arbitrary imposition of the death penalty in

Virginia, namely, that the penalty may only be imposed if one of the

statutory aggravating circumstances is proved to exist beyond

reasonable doubt at a separate sentencing hearing.  Moreover, a

post-sentence investigative report concerning the accused's background

is reviewed by the trial judge and an automatic review of the trial

and sentencing proceedings is carried out by the Supreme Court of

Virginia.  In addition, an accused's mental condition can be taken into

consideration at the separate sentencing procedure.

        The Government contest the applicant's assertion that legal

aid is not available under Virginian law for the purposes of voluntary

appeals in cases of capital murder.

        Finally, it is contended inter alia that the applicant's

complaints are not arguable in terms of the Convention and that

therefore no issue arises under Article 13 (Art. 13) of the Convention.

        The Commission considers, in the light of the parties'

submissions, that the application as a whole raises complex issues of

law and fact under the Convention, the determination of which depends

on an examination of the merits of the application.

        It concludes, therefore, that the application cannot be

regarded as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention and no other ground for

declaring it inadmissible has been established.

        For these reasons, the Commission

        DECLARES THE APPLICATION ADMISSIBLE

        without prejudging the merits of the case.

Secretary to the Commission         President of the Commission

    (H. C. KRÜGER)                       (C. A. NØRGAARD)