Case: The Soering Case (1989, ECHR)

Facts:
• Soering, a German national, but had lived in US since he was a child. He
murdered his girlfriend's parents in Virginia, and they both left the U.S. They
were later arrested in England for another crime. US then sought extradition of
both, on the basis of a treaty signed in 1972.
• Soering filed a petition for habeas corpus with the Divisional Court and
requested permission for judicial review of the decision to commit him, arguing
that the Extradition Act did not authorize his extradition for a capital charge.
He also cited article IV of the US-UK extradition treaty which provided that a
request for the extradition of a person charged with an offence carrying the death
penalty could be refused where the requesting country had not given "assurances
[...] that the death penalty will not be carried out." His claims were rejected.
• Soering had also filed a claim with the European Commission of Human Rights,
asserting that he would face inhuman and degrading treatment contrary to Article 3
of the European Convention on Human Rights were he to be extradited to the USA, it
being likely that the death penalty would be applied in his case.

Judgment:
• The ECHR accepted Soering's application.

Notes
• US applied for extradition under US-UK extradition treaty. Germany also applied
for extradition to get him to Germany for trial there.
• He said extradition would violate ECHR
○ Death penalty in US, and sending him there would violate Art 3
• Death penalty does not violate of ECHR, but conditions of death row and other
factors can violate art 3.
• Court doesn’t say that anytime you extradite someone t a country without same
norms as UK, it’s a violation, but its narrower. Certain conditions must be met.

• Does the European Commission says that by extraditing, there is a possibility of

violating the ECHR?
○ ECHR decided that the extradition would not, in this particular case,
constitute inhuman or degrading treatment. It did, however, accept that the
extradition of a person to a country "where it is certain or where there is a
serious risk that the person will be subjected to torture or inhuman treatment the
deportation or extradition would, in itself, under such circumstances constitute
inhuman treatment."
• What does the ECHR do?
○ Departing from the Commission's ruling, the Court concluded that the
"death row phenomenon" did breach Article 3, highlighting four factors which
cumulatively gave rise to the violation: (i) the length of detention prior to
execution, (ii) the conditions on death row, (iii) Soering's age and mental
condition, and (iv) the possibility of his extradition to Germany.
○ On these factors, they decided it was a disproportionate punishment
• Both agree, as a matter of law, that extradition can be a violation, but
disagree if it was on these facts. Commission says it doesn’t violate, but Court
disagrees.
• Soering was ultimately tried in Virginia, but not given death penalty (jury
recommended he serve 2 life terms)

• Why is the ECHR more effective? Do you think it should be more effective?
• Even though ECHR is becoming so popular, is this a good thing? Would US sign on
and cede our authority?