Lexploria

AS TO THE ADMISSIBILITY

Application No. 12553/86

by N.E.

against the United Kingdom

The European Commission of Human Rights sitting in private

on 7 July 1987, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

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 24 November

1986 by N.E. against the United Kingdom and

registered on 24 November 1986 under file No. 12553/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to:

- The Rapporteur's decision of 24 November 1986 to bring the

application to the notice of the respondent Government and

to request information pursuant to Rule 40 (2)(a) of the

Rules of Procedure concerning the imminency of the surrender

of the applicant to the authorities of the United States

of America;

- The respondent Government's reply dated 28 November 1986;

- The Commission's decision of 9 December 1986 to invite the

respondent Government pursuant to Rule 42 (2)(b) of the

Rules of Procedure to submit written observations on the

admissibility and merits of the application;

- The observations submitted by the respondent Government on

4 March 1987 and the observations in reply submitted by the

applicant on 13 April 1987;

- The Commission's decision of 14 May 1987 to invite the

parties to make further submissions at a hearing pursuant to

Rule 42 (3)(b) of the Rules of Procedure to be held on

13 July 1987;

- The applicant's representatives' telex of 1 July 1987

informing the Commission of his wish to withdraw the

application;

- The President of the Commission's decision of 1 July 1987 to

cancel the proposed hearing;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as submitted by the applicant may be

summarised as follows:

The applicant, allegedly a United States national born in

1957, is represented before the Commission by Mr. Colin Nicholls, Q.C.

and Mr. David Spens of counsel, instructed by Messrs. Trevor Hamlyn,

solicitors of London.

On 6 April 1981, in the District Court for the Southern

District of Florida, the applicant was convicted of possessing

marijuana with intent to distribute. On 21 May 1981, he was sentenced

to five years' imprisonment. He appealed against his conviction. On

29 October 1982, his appeal was dismissed. He then being on bail

was called upon to surrender to serve his sentence.

In 1985 he was indicted by a grand jury at the same court for

various offences arising out of smuggling marijuana into Florida and

distributing it, for three offences of kidnapping and three of murder.

A warrant was issued for his arrest. He avoided arrest. On

5 September 1985, at Heathrow Airport, the applicant was arrested by

officers of the Metroplitan Police for possessing two flick knives, an

offence contrary to Section 1 of the Prevention of Crime Act 1953,

carrying a maximum penalty of two years imprisonment.

On 13 September 1985, a warrant for his arrest was issued

under the provisions of Section 8 of the Extradition Act 1870, ("the

Act") for one of the murders above mentioned. He was kept in custody.

The Government of the United States of America requested his

extradition under the terms of the Extradition Treaty between the

United States and the United Kingdom of 1972, incorporated in the

United States of America (Extradition) Order 1976 (S.I. 19176

No. 2144).

On 14 November 1985, the Secretary of State for Home Affairs

issued two orders under Section 8 of the Act, one referring to the

offence for which the applicant was convicted and one for the offences

for which he was wanted for trial in the United States, requesting a

Magistrate at Bow Street to proceed in conformity with the provisions

of the Extradition Acts 1870-1936 ("the Extradition Acts").

On 13 March 1986, at the Bow Street Magistrates' Court,

committal proceedings took place before the Chief Metropolitan

Magistrate. The evidence produced by the Government of the United

States discloses that between 1979 and 1983 the applicant was active

in a drug smuggling organisation run by a man named R.T. R.T. was a

United States' citizen who owned and lived near a yacht centre in Fort

Lauderdale, Florida. His yachts went from the centre to seas round

the Bahama Islands where they were loaded with marijuana from waiting

freighters. The drugs were taken to the centre and distributed in the

United States.

The applicant provided security services for the organisation.

According to the evidence, R.T. fell out with three members of the

organisation and employed the applicant and others to kidnap and

murder them. The first victims were two men, R.V. and T.H. In

July 1980, the applicant, a certain D. and another man, kidnapped them

and tied them up overnight in one of R.T.'s yachts. The following day

they took them seven miles out to sea in another of R.T.'s yachts,

where the applicant shot R.V. and D. shot T.H. Their weighted bodies

were then pushed overboard. They were not seen again.

The third victim was J.S. Early in 1982 the applicant with

another kidnapped him and kept him at the centre overnight. The

following day R.T. and the other man took J.S. out in one of R.T.'s

boats, shot him and pushed him overboard. The applicant did not go on

the trip, but was present when the murder was discussed and was at the

centre when R.T. returned and J.S.'s car was cut up and the parts

dispersed.

At the committal proceedings it was urged on behalf of the

applicant that:

(1) the Chief Magistrate could not commit the applicant

for return in respect of the R.V. and T.H. murders, since

they were committed outside the territorial jurisdiction

of the United States, and

(2) he could not commit the applicant for return in

respect of the J.S. murder, since there was insufficient

evidence that the murder was intended to take place within

the territorial jurisdiction of the United States.

The Chief Magistrate committed the applicant to await the

Secretary of State's order for his return to the United States in

respect of all three murders and the kidnapping and drugs offences

referred to in the Secretary of State's Orders to Proceed.

The applicant applied to a Divisional Court of the High Court

for leave to apply for a writ of habeas corpus in respect of his

committal to await his return in respect of the three offences of

murder.

On 31 July 1986 his application was refused. He applied to

the Divisional Court for leave to appeal to the House of Lords. That

application was refused. On 13 August 1986, the applicant petitioned

the House of Lords for leave to appeal against the decision of the

Divisional Court in respect of the R.V. and T.H. murders. He did not

petition in respect of the J.S. murder. The applicant's petition for

leave to appeal to the House of Lords was heard and rejected by the

House of Lords on 24 November 1986.

On 21 November 1986 the applicant petitioned the Secretary of

State for Home Affairs to exercise his discretion under Section 11 of

the Extradition Act 1870, not to order his surrender to the

authorities of the United States, on the ground that it would cause

serious risk of his being subject to inhuman and degrading treatment

or punishment, contrary to Article 3 of the European Convention on

Human Rights. The Secretary of State refused to exercise his

discretion and dismissed the petition.

Relevant domestic law and practice

in the United Kingdom as submitted by the applicant

The law relating to extradition between the United Kingdom and

the United States of America is governed by the Extradition Acts and

the Treaty signed by the two States on 8 June 1972. The Treaty is

embodied in an Order in Council, No. 2144 of 1976. For there to be a

successful request, the offence charged in the United States warrant

must be an "extradition crime". What is an "extradition crime"

depends on the Treaty, and it is only a crime in respect of which

extradition may be granted if it is included in the Extradition Acts

or some other relevant statute as an "extradition crime". Section 26

of the Act provides that the term "extradition crime" means a crime

committed in England or within English jurisdiction which would be one

of the crimes described in the First Schedule to the Act. The list

includes murder.

Article III of the Treaty provides:

"(1) The extradition shall be granted for any act or omission

the facts of which disclose an offence within any of the

descriptions in the Treaty ... or any other offence if

(a) the offence is punishable under the law of both

Parties by imprisonment or other form of detention for

more than one year or the death penalty.

(b) the offence is extraditable under the relevant law

being the law of the United Kingdom.

(c) the offence constitutes a felony under the law of

the United States of America."

There is no provision in the Extradition Acts relating to the

death penalty.

Article IV of the 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 the discretion in Article IV is vested in the

Secretary of State by Section 11 of the Act. It is not available

to be argued until the fugitive has exhausted his legal remedies at

committal or by way of appeal for a writ of habeas corpus. The terms

of Section 11 are:

"If the police magistrate commits a fugitive criminal to

prison, he shall inform such criminal that he will not be

surrendered until after the expiration of fifteen days, and that

he has a right to apply for a writ of habeas corpus.

Upon the expiration of the said fifteen days, or if a writ of

habeas corpus is issued, after the decision of the court upon

the return of the writ, as the case may be, or after such

further period as may be allowed in either case by the

Secretary of State, it shall be lawful for the Secretary of

State by warrant ... to order the fugitive criminal ... to be

surrendered to such person as in his opinion be duly authorised

to receive the fugitive criminal by the foreign state ... and

such foreign criminal shall be surrendered accordingly.

It shall be lawful for any person to whom such warrant is

directed and for the person so authorised ... to receive, hold

in custody and convey within the jurisdiction of such foreign

state the criminal mentioned in the warrant ..."

It is the English practice before surrendering a fugitive who

is liable to the death penalty to seek the best assurances from the

requesting State that the death penalty will not be carried out,

although it is generally impossible for the requesting State to give a

binding guarantee as to this. According to the Report of an

independent working party of the Home Office, published in 1982, it

would appear that in the rare cases where the problem has arisen, the

United Kingdom has been able to obtain an assurance that a

recommendation against the imposition or execution of the death

penalty will be made in appropriate quarters, and in some cases

evidence has been provided that the death penalty is not carried out

for the offence in question. It would appear that the United Kingdom

Government have never refused to surender a fugitive on these grounds.

The practice referred to in the Report of that working party

is to be contrasted with the attitude of the Government of the Federal

Republic of Germany. During the 159th Session of the European

Commission of Human Rights in Application No. 9539/81 the applicant

complained of his extradition to Turkey where he risked execution.

The Government ultimately decided to refuse extradition since the

Turkish Government refused to confirm that the sentence would not be

carried out. The application was then struck out at the applicant's

request.

Relevant law and practice in the United States

of America as submitted by the applicant

For the purposes of extradition, the law of the United States

of America includes the law of any of its States. The provisions

relating to the crime of murder in the law of Florida are as follows:

Florida Statute 782.04(1)(a) provides that:

"[T]he unlawful killing of a human being, when perpetrated from

a premeditated design to effect the death of the person killed

or any human being, or when committed by a person engaged in

the perpetration of, or in the attempt to perpetrate, any ...

kidnapping ... placing or discharging of a destructive device

or bomb ..., shall be murder in the first degree and shall

constitute a capital felony, punishable as provided in

s.775.9082."

Florida Statute 921.141 provides for further proceedings in

which the court is required to conduct a separate sentencing

proceeding to determine whether the defendant should be sentenced to

death or life imprisonment. Further provisions are made for there to

be an automatic appeal to the Supreme Court of Florida and power is

given to the Governor to stay execution.

The separate sentencing proceedings and the automatic appeal

therefrom operate in the following way. Where an accused is convicted

of first degree murder the same trial judge and the same jury

reconvene to hear argument on sentence. Any evidence thought relevant

to this issue may then be pleaded and the jury must reach a conclusion

on the effect of any aggravating or mitigating factors. Their

conclusion as to whether the death penalty should be imposed is

subject to the overriding decision of the judge. If the judge does

override the jury's verdict and imposes a death sentence the reasons

for this must be given in writing.

All death sentence cases are automatically reviewed by the

Supreme Court of Florida. Such review must, in accordance with

Florida Statute Section 921.141(4), be commenced within 60 days of the

certification of the entire record by the sentencing court, a period

which may be extended by up to 30 days by the Supreme Court for cause.

Nevertheless, in view of the large number of persons sentenced

to death in Florida (over 200 are currently on "death row"), a study in

1982 of the timetable of 16 death penalty cases on appeal to the

Supreme Court of Florida revealed that an average of two years and

eleven months elapsed before judgment under the automatic review

procedure was given, notwithstanding that the above-mentioned Section

provides that the review "shall have priority over all other cases".

Thereafter the applicant may file a petition of certiorari

with the Supreme Court of the United States. If such a petition is

rejected the State Clemency Board is convened to consider any reasons

why the death penalty should be commuted. The Board may be expected

to sit (according to the same survey) some six months after the

Supreme Court's rejection of a certiorari petition. Its decision

usually follows some two months later. If clemency is denied, the

State Governor signs a death warrant which will be executed some

thirty days later, unless further appeals are then made.

The avenue for any such further appeals would be by

application to the trial judge, appeal to the Supreme Court of

Florida, appeal to the Federal District Court, further appeal to the

United States' Eleventh Circuit Court of Appeals in Atlanta and

thence, again, to the Supreme Court of the United States.

Matters relevant to the imposition of the death penalty

in the case of the applicant

It is understood that the Government of the United States is

seeking the death penalty in respect of all three murder offences.

The applicant's co-accused R.T. has recently been tried and

convicted of the murder of J.S. The jury recommended a sentence of

life imprisonment, but the trial judge overrode the jury's decision

and sentenced him to death. R.T. was also sentenced to life

imprisonment without parole in respect of drugs offences. He still

awaits trial in respect of the murders of T.H. and R.V.

Those representing the applicant have enquired of the

Secretary of State for Home Affairs and the Director of Public

Prosecutions, whether the Secretary of State has sought from the

United States' authorities an assurance under Article IV of the

Anglo-U.S. Extradition Treaty that the applicant will not be executed

and whether one has been given. The applicant's solicitors have

received a letter dated 24 October 1986 from the Crown Prosecution

Service, containing an affidavit of the Assistant State Attorney, who

is now responsible for the prosecution of the applicant, under

certification of the Governor of Florida in which he states that:

"[I]n accordance with Article IV of the Treaty of

Extradition between the United States and the United Kingdom,

I hereby certify that should (the applicant) be convicted of

the offences with which he is charged in Broward County,

Florida, as more fully described in the extradition papers

previously submitted, 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. Finally I

certify that I have discussed this matter with an authorised

representative of the State Attorney for the 17th Judicial

Circuit, in and for Broward County, Florida and that the

State Attorney concurs in offering this assurance in support

of the extradition of (the applicant)."

The letter from the Crown Prosecution Service also states that

it is understood that the assurance is regarded as satisfactory by the

Home Secretary.

It is submitted that in the circumstances of the applicant's

case, particularly the multiplicity of murders, their deliberation,

the manner in which they were committed and the applicant's

involvement with racketeering and drug trafficking, together with the

history of the death penalty in Florida, the said assurance is not

satisfactory, and gives serious reason to believe the applicant will

still be exposed to the "death row phenomenon". The assurance can have

no real effect on the Florida court, since it is not a factor to be

considered by it under the relevant Statute, and its consideration

would inevitably raise constitutional issues of profound importance.

The applicant has in mind that Ernest Major Kirkwood (No.

10479/83 Dec. 12.3.84, D.R. 37 p. 158) who was returned to the United

States by the United Kingdom on 15 March 1983, has had various

pre-trial motions to avoid trial for Capital Murder rejected by the

Superior and Appeal Courts. If that applicant faces trial despite the

assurance given in his case, he will be exposed to the "death row

phenomenon", whether or not the assurance is ultimately acted upon by

the State Governor. The assurance given in the Kirkwood case, if

ineffective to prevent a trial in which the death sentence is sought,

can only operate, if at all, after the State and Federal appeals have

been made and rejected.

COMPLAINTS

Article 3

The applicant complains that if he is surrendered to the

United States, 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. In support of the

applicant's complaint he quotes:

"The Commission has recognised in its previous case law that a

person's extradition may, exceptionally, give rise to issues under

Article 3 of the Convention where extradition is contemplated to a

country in which due to the very nature of the regime in that country,

or to a particular situation in that country (emphasis added)

basic human rights, such as are guaranteed by the Convention, might be

either grossly violated or entirely suppressed" (No. 1802/62,

Dec. 26.3.63, Yearbook 6 p. 462 at p.480; Application No. 10308/83,

Altun v. Federal Republic of Germany, Dec. 3.5.83, D.R. 36 p 209).

"According to the Commission case law concerning cases of

extradition under Article 3 of the Convention, the only factor which

is relevant is the existence of an objective danger for the person

extradited" (No. 10479/83, Dec. 12.3.84, D.R. 37 p. 183).

In Kirkwood, the Government of the United States of

America sought the extradition from the United Kingdom of an American

citizen charged with two murders and attempted murder. The State

within the United States which sought to try him was the State of

California, where the death penalty applied, but where it had not been

carried out since 1967. At the request of the Government of the

United Kingdom the Attorney General of California gave what purported

to be an assurance under Article IV of the Anglo-United States

Extradition Treaty that representations of the United Kingdom

Government that he should not be executed would be placed before the

Governor of California. Kirkwood applied to the Commission against

his extradition on the ground that the assurance was valueless, and

argued that his extradition would constitute a breach of inter alia

Article 3 of the Convention in view of the inordinate delays in

carrying out the death penalty in California.

After receiving observations of the United Kingdom Government

and further observations of Kirkwood, the Commission ruled his

complaint inadmissible on the grounds:

(1) that it had not been established that the treatment to

which he would be exposed and the risk of his exposure to

it was so serious as to constitute inhuman or degrading

treatment or punishment contrary to Article 3 of the

Convention (loc. cit. p. 188), and

(2) there was nothing to show that the conditions of

detention of "death row" prisoners were so severe as to

constitute a gravely aggravating aspect in assessing the

seriousness of his complaints (loc. cit. p. 190).

In coming to its decision as to his exposure to Article 3

treatment and punishment, the Commission noted that:

(1) the assurance obtained had not removed the risk of

Kirkwood being subjected to the "death row phenomenon" (loc.

cit. p. 188)

(2) the probability that if convicted he would be exposed to

the "death row phenomenon" was high (loc. cit. p. 185).

It decided that it did not attain the degree of seriousness

envisaged by Article 3, because

(1) of the complex and detailed measures to accelerate the

appeals in capital cases in California, particularly the

priority assigned to them as to counsel and the formal time

limit imposed by the Supreme Court (loc. cit. p. 188)

(2) of the momentous significance of the appeals on the

applicant (loc. cit. p. 188)

(3) the "death row phenomenon" was an arguable basis for

alleging cruel or unusual punishment in the United States,

particularly California (People v. Anderson, 493 P 2d

880). Although the argument had not yet been successful in

putting an end to the "death row phenomenon", the Commission

expressed its confidence in the rapid developments of which

the common law was capable and held that the worsening of

the "death row phenomenon" would give better grounds for such

an argument (loc. cit. p. 189) in the United States' courts.

The Commission said its task was to examine the machinery of

justice to which Kirkwood would be subjected and to establish whether

there were any aggravating factors which might indicate arbitrariness

or unreasonableness in its operation. It concluded that capital cases

in California were dealt with so as to ensure compliance with the

provisions against arbitrariness laid down in the Californian and

United States' Constitutions.

It is submitted that the applicant's case is to be

distinguished from the Kirkwood case:

(1) because of the entirely different circumstances existing

in Florida, as opposed to California, as disclosed by the

documents submitted in support of the application, in

particular the number of "death row" detainees, the severe

conditions of their detention, the number of consequential

appeals in capital cases, the consequential delays in those

proceedings and the preparedness of the authorities

nevertheless to execute appellants after the failure of

their appeals, years after their trials,

(2) because the evidence indicates clearly that, whatever the

machinery of justice pertaining in Florida and the United

States generally, the existing situation to which the applicant

will be exposed in Florida, indicates that he will suffer the

"death row phenomenon", and

(3) because the Supreme Court of the United States is ineffective

to prevent it.

Alternatively, the Commission should independently determine

that the question is one which should be admitted in order that it

can be given full and proper consideration by the Court. It is

further submitted that the evidence indicates that the situation in

the United States, far from improving, as the Commission suggested it

might, in the Kirkwood case, has been aggravated.

It is submitted, on the basis of voluminous and substantial

evidence, that if the applicant is surrendered to the United States,

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 Florida, together with the

aggravating circumstances arising from the conditions of

imprisonment.

The applicant contends that the system of capital punishment

as operated in Florida is arbitrary and discriminatory. The

development of the case-law in this area has reduced the protection of

the accused and exacerbated the psychological pressure on "death row"

detainees.

Following its decision in Lockhart v. McCrea (No. 84-18 65)

the Supreme Court of the United States has permitted the exclusion of

committed opponents of the death penalty from juries in capital cases.

The risk of a conviction and death sentence is thereby arbitrarily

increased.

Evidence submitted by the applicant tends to show that juries

are arbitrarily predisposed to sentence to death persons who kill

white, rather than black, people. Arbitrary factors including the

geographical location of the murder, as well as the victim's race and

that of the accused, appear to influence juries. In addition, in

Florida the trial judge may overrule a jury's sentence of life

imprisonment and impose the death penalty; this has occurred

ninety-three times.

The severity of the "death row" conditions themselves is acute

and made worse by the duration of the proceedings. Those executed

between 1977 and 1984 spent an average of 6 years on "death row" between

sentence and execution. In one case, Sullivan, the period was ten

years.

The "death row" detainees occupy cells two metres by three,

which they leave only to shower three times per week for five minutes,

for exercise in a special yard for only 16 hours per month (twice two

hours per week), or for visits. Visits are limited, there is no

access to the prison library or educational facilities, prisoners

cannot work in the prison, their diet and medical treatment is poor

and their sole contact is with warders.

The nature of the execution and its implementation are also

referred to.

In Florida execution is by electrocution. Following the

signing of the Governor's execution warrant the condemned man is

transferred to a special cell, in close proximity to the execution

chamber. He is deprived of all his personal belongings and must ask a

warder for all his needs. He is kept under supervision at thirty

minute intervals; this interval is reduced to fifteen minutes during

the final week. During the final week before an execution the

electric chair is tested. The resultant power surge dims the lights

throughout the prison.

On the day of execution the applicant's hair is shaved on his

head and calf. Both are smeared with a current-conducting jelly prior

to the attachment of the electrodes. The condemned man's head is

covered after he has been strapped into the oak chair, known as

"Ol' Sparky", which has been used for executions in Florida since

electrocution was introduced. One shock of two thousand volts is not

invariably sufficient to kill; in the case of Spenkelink (1979) three

shocks had to be administered over a six minute period before death was

certified.

The applicant contends that because Florida has the largest

"death row" population of any State, but a tremendous backlog of death

penalty cases, "death row" inmates remain in the inhuman conditions

described above for an inordinate amount of time.

Article 13

According to the jurisdiction of the Commission, where an

individual has an arguable claim to be a 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 have redress (Eur. Court H.R., judgment of Silver and

Others of 25 March 1983, Series A no. 61 paras. 111-9 and Eur. Court

H.R., Klass and Others judgment of 6 September 1978, Series A no. 28).

In the Kirkwood case, after the Commission had withdrawn its

ruling under Rule 36 of the Rules of Procedure, and before the

Commission had given its decision as to the admissibility of his

application, the Secretary of State for Home Affairs ordered

Kirkwood's surrender to the United States under Section 12 of the

Extradition Act 1870, in spite of his petitioning against his

surrender on the same terms as his application to the Commission.

Kirkwood applied to the High Court for judicial review of the order on

the grounds that it was unreasonable to surrender him:

(1) during the pendency of the European proceedings, and

(2) in violation of the United Kingdom's obligations to the

European Convention of Human Rights.

Kirkwood also applied for a stay of the Secretary of State's

order and a writ of habeas corpus on the same grounds. His

applications were refused by the High Court, which also refused him

leave to appeal to the House of Lords. The House of Lords also

refused leave to appeal. These two judgments of the High Court are

binding on the present applicant.

The United Kingdom has not incorporated the Convention into

its domestic law, although the English courts may take it into account

as an aid to statutory construction: R v. Chief Immigration

Officer, ex parte Bajan Singh (1976) 1 QB 198, R v. Chief

Immigration Officer, ex parte Bibi (1976) 1 WLR 979. The High

Court in R v. Secretary of State for the Home Department, ex parte

Kirkwood (1984) 2 All E R 390, relying on R v. Secretary of

State, ex parte Fernandez (1981) Imm App R I, held that the

Secretary of State was under no obligation to observe the duties

imposed by Human Rights treaties.

It follows that the Secretary of State is not required to have

due regard to the Convention in exercising his discretion under

Section 11 of the Act, and there is every reason to believe that in a

case such as the applicant's, where the alternative to extradition is

to leave him free within the English community, the Secretary of State

would disregard it. The courts which examined the lawfulness of the

applicant's extradition could not examine the allegation that the

applicant's surrender would involve a violation of Article 3 of the

Convention.

It is submitted that in these circumstances the applicant

has no effective remedy as required by Article 13 for the breach of

Article 3 which he alleges.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 November 1986 and

registered on the same day. It was examined by the Rapporteur on the

same day and information was requested from the respondent Government

pursuant to Rule 40 (2)(a) of the Rules of Procedure concerning the

imminency of the surrender of the applicant to the authorities of the

United States of America.

The respondent Government replied on 28 November 1986. The

Commission examined the admissibility of the application on 9 December

1986 and decided, in accordance with Rule 42 (2)(b) of the Rules of

Procedure, to invite the respondent Government to submit written

observations on its admissibility and merits before 2 January 1987.

On 17 December 1986 the respondent Government requested an extension

for the submission of the observations which was granted by the

President of the Commission until 16 January 1987. Two further

extensions for the submission of the observations were sought by the

respondent Government, on 14 January 1987 and 29 January 1987, which

were required inter alia to enable information to be obtained from the

United States' authorities, both of which were granted, the latter

until 27 February 1987. The observations were submitted on 4 March

1987. The applicant was invited to submit observations in reply

before 27 March 1987. On 23 March 1987 the applicant's representative

requested an extension until 14 April 1987 in the time limit for the

submission of these observations to enable legal opinions to be sought

from the applicant's representatives in the United States. This

extension was granted by the President of the Commission on 26 March

1987 and the observations were submitted on 13 April 1987.

On 14 May 1987 the Commission resumed its examination of the

admissibility of the application and decided to invite the parties,

pursuant to Rule 42 (3)(b) of the Rules of Procedure, to make further

submissions on its admissibility and merits orally at a hearing.

The hearing was fixed for 13 July 1987. On 1 July 1987 the

applicant's representatives informed the Commission by telex that the

applicant wished to withdraw his application. The President of the

Commission decided on the same day to cancel the proposed hearing and

the parties were so informed.

FINDINGS OF THE COMMISSION

The applicant complained about his proposed extradition from

the United Kingdom to the United States of America and about the

alleged inadequacy of the remedies available under English law against

the decision to surrender him to the authorities of the United States

of America. However, it appears from the applicant's representatives'

telex of 1 July 1987 that the applicant, who has been and continues to

be independently advised throughout, wishes to withdraw his

application. The Commission finds that there are no reasons of a

general character affecting the observance of the Convention which

necessitate a further examination of the case.

For these reasons the Commission

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Secretary President

to the Commission of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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N.E. v. THE UNITED KINGDOM

N.E. v. THE UNITED KINGDOM