Soering v UK

Legal Case Summary

Soering v United Kingdom (1989) 11 EHRR 439

Introduction

Soering v United Kingdom (1989)¹ concerns Articles 3, 6 and 13 of the European Convention on Human Rights (ECHR) 1950 and the potential extradition to the USA by the UK of a West German national to face trial in Virginia, USA on a murder charge. Soering argued that if he were found guilty of murder and sentenced to death, that he would experience ‘death row-phenomenon’ which would lead to the violation of his Convention rights.

Issues

The Soering case raises the issue of non-refoulement, which engages state responsibility by the act of removal of an individual to a state where he or she will be exposed to a certain degree of risk of having her or his human rights violated.² The decision in Soering affirms the extraterritorial applicability of human rights guarantees within the ECHR as well as the absolution prohibition against torture under Article 3.

Facts

Jens Soering is a German national, who at the time of the alleged offence was a student at the University of Virginia.³ He and his girlfriend were wanted in Bedford County, Virginia, USA for the murder of his girlfriend’s parents. The couple disappeared from Virginia in October 1985, and were later arrested in England in April 1968 in connection with cheque fraud.⁴ Soering was interviewed by Bedford County police in the UK, which led to his indictment on charges of capital murder and non-capital murder. The USA commenced extradition proceedings with the UK under the terms of the Extradition Treaty of 1972, between the USA and UK.⁵ Mr Soering applied to the European Court on Human Rights (ECtHRs) alleging the breach of Article 3, Article 6 and Article 13 ECHR.

The Decision of the ECtHRs

Article 3 – Soering alleged that the decision of the secretary of state for the home department to surrender him to the US would, if implemented give rise to a breach of Article 3 ECHR. Article 3 provides: that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.⁶ The breach of Article 3 is linked to the treatment the applicant argued he would receive if he were to be detained on death row in Virginia for an expected six to eight years.⁷ The ECtHR accordingly found the UK to be in breach of Article 3.

Article 6 – Soering alleged that the lack of legal aid in Virginia and the failure of the English Magistrates court to consider his psychiatric condition amounted to a breach of the right to a fair trial. The ECtHR found they had no jurisdiction to consider this matter.⁸

Article 13 – Soering further argued that he had no effective remedy in the UK with respect to his complaint under Article 3. The ECtHR found there to be no breach of Article 13; since Mr Soering had the opportunity to bring judicial review proceedings at the appropriate time within UK law.⁹

Analysis

The ECtHR in defining torture, inhuman or degrading treatment under Article 3 ECHR, argued that ill-treatment must attain a minimum level of severity to fall within the scope of Article 3. This depends upon the circumstances of the case and context of the treatment or punishment, the manner and method of its execution, its duration and physical or mental effects.¹⁰ The Soering doctrine is narrowly construed.¹¹ Central to the ECtHRs reasoning was the ‘serious and irreparable nature of the alleged suffering’.¹² Soering is part of the courts extensive jurisprudence in support of the rights of prisoners.¹³ Furthermore, it first established the principle that a Member State can be in breach of a Convention right merely by expelling an individual to a state in which he or she would face a breach of a Convention right.¹⁴ The UK itself did not need to carry out any acts of torture, inhuman or degrading treatment to be in breach of Article 3, they merely need to place Soering at the ‘real risk’ of being subject to treatment in breach of Article 3. The Soering decision effectively established a hard protection against extradition in Article 3 cases.¹⁵ This principle was later extended to violations of Article 6 (fair trial),¹⁶ Article 13 (lack of effective remedy)¹⁷ and Protocol 4 (collective expulsions).¹⁸ In Vilvarjah and Others v the United Kingdom,¹⁹ the ECtHR subsequently imposed certain limitations upon extradition, requiring that ‘a sufficiently clear causal link between the removal and any ill-treatment which might have occurred’.

The Soering doctrine has proved particularly controversial in cases of suspected terrorism. In Chahal v UK,²⁰ Karamjit Singh Chahal was a Sikh who illegally entered the UK in 1971. A general amnesty in 1974 permitted him to stay in the UK. However, he was later arrested in connection with a conspiracy to kill the Indian Prime Minister and a deportation order was made by the UK on the grounds of national security under section 3(5) Immigration Act 1971. Chahal took his case to the ECtHR, alleging a real risk of a breach of his Article 3 rights if he was deported. The majority of the ECtHR affirmed the absolute prohibition of torture, finding that if there is a substantial risk in deportation cases that there would be a breach of Article 3, the deportee’s status could not be a material consideration.²¹ It has been suggested that the Chahal decision sometimes makes it difficult for governments to deal with suspected terrorists.²² However, the decision was later affirmed by the ECtHR in Saadi v Italy,²³ despite an argument by the UK that Chahal had failed to give proper weight to the right to life under Article 2 ECHR. The ECtHR once again reaffirmed the absolute nature of the prohibition on torture in rejecting these arguments.

The ECtHR has noted the absolute prohibition of Article 3 and distinguished this from cases in which other Convention rights might be violated upon expulsion.²⁴ Z and T v UK, ²⁵concerned the case of two Pakistani individuals who argued that upon the return to Pakistan, would not be ‘able to live freely and openly as Christians’, arguing a potential breach of their freedom of to practice a religion under Article 9. In rejecting their application, the ECtHR held that ‘such compelling considertaion [as absoluteness]’ does not automatically apply under the other provisions of this Convention.²⁶

Footnotes

¹ Soering v United Kingdom (1989) 11 EHRR 439.

² Kathryn Greenman, ‘A Castle Built on Sand? Article 3 ECHR and the Source of Risk in Non-Refoulement Obligations in International Law’ (2015) 27(2) International Journal of Refugee Law, 264-296.

³ Soering v United Kingdom (1989) 11 EHRR 439 at ¹².

⁴ ibid at ¹³.

⁵ ibid at ¹⁴.

⁶ Article 3 ECHR 1950.

⁷ Soering v United Kingdom (1989) 11 EHRR 439 at ¹¹⁴.

⁸ ibid at ¹¹⁵.

⁹ ibid at ¹²².

¹⁰ Ireland v the United Kingdom judgment, Series A no. 25, p. 65.

¹¹ Cruz Varas v Sweden (1992) 14 EHRR 1.

¹² Soering v United Kingdom (1989) 11 EHRR 439 at ⁹⁰.

¹³ Richard Clements, Public Law (Oxford University Press 2015) p.119.

¹⁴ M. Cherif Bassiouni, International Extradition: United States Law and Practice (Oxford University Press, 2013) p.344.

¹⁵ Ibid.

¹⁶ e.g. Othman (Abu Qatada) v United Kingdom App. no. 8139/09 (2012).

¹⁷ e.g. Cyprus v Turkey, Grand Chamber, Judgment, Application No. 25781/94, 10 May 2001, at 69-81.

¹⁸ e.g. Hirsi Jammaa and Others v Italy, Application no. 27765/09, Judgment Strasbourg 23 February 2012.

¹⁹ Vilvarjah and Others v the United Kingdom Application no, 13163/87 (1991) at ¹⁰⁵.

²⁰ Chahal v UK 1996-V; (1997) 23 EHRR 413.

²¹ ibid at ¹⁴³.

²² David Feldman, ‘Deporting suspected terrorists to face torture’ (2008)67(2) Cambridge Law Journal, 225-227, p.225.

²³ Saadi v Italy., Application No. 37201/06, judgment of 28 February 2008 (Grand Chamber).

²⁴ Hemmes Battjes, ‘Why Only Fundamental Values Prohibit Refoulement in ECHR Case Law’ (2009) 11(3) European Journal of Migration and Law, 205-219, p.211.

²⁵ Z and T v UK, appl. no. 27034/05 28 February 2006.

²⁶ ibid at p.6 (pars not numbered).