SOERING v UK

General Principle:

The ECtHR has drawn a distinction between situations in which other Convention rights may be infringed upon expulsion and those in which Article 3's ban is absolute.

Name:

Soering v UK (1989) 11 EHRR 439.

Soering was being held in jail by the United Kingdom at the time but was sought for extradition to the United States on a murder charge carrying the death penalty. It was made quite obvious by the authorities in Virginia, the state where he was sought, that they intended to pursue the death sentence for him. Soering attempted to challenge his removal to that jurisdiction on the grounds that it would be unlawful for a Convention state to remove an individual to a jurisdiction where there was a "real risk" he would suffer treatment contrary to the Convention. He argued that this would violate the Convention, which states that it is unlawful for a Convention state to remove an individual. The violation could not be "contracted out" by the state in the sense that the subject could not be sent to another country to endure treatment that was illegal in their own country. In light of this, it is possible that the Convention might have some extraterritorial impact under these specific conditions.

Ratio:

Notwithstanding the provisions of the Convention, the use of the death penalty was obviously still legal at the time (one of the exceptions in Article 2). It was impossible for Soering to claim that the relocation to face potential execution in Virginia was in violation of the Convention because of this. Instead, he argued effectively that the way in which the process of carrying out the death penalty in the United States would violate Article 3, since it would constitute inhuman or humiliating treatment or punishment. His argument was successful, and the article was found to be violated. It wasn't so much the execution method as it was the drawn-out nature of the legal processes; it wasn't unheard of for convicts to languish on death row for years, if not decades. This was not the actual cause of death, but rather the prolonged nature of the process. This resulted in a mentally debilitating illness known as "the death row phenomenon," which, in the opinion of the Supreme Court, was inhumane.

Application:

The case of Soering v UK brings up the issue of non-refoulement, which is when a person is moved to a state where there is a possibility that their human rights will be violated. This action triggers a state's responsibility to that person because it places that person in jeopardy of having their rights violated. The ruling in the case of Soering upholds the extraterritorial validity of human rights provisions included under the ECHR as well as the absolute ban against torture contained within Article 3.

Analysis:

The European Court of Human Rights (ECtHR) held that the British authority violated Article 3 ECHR because the applicants were at real risk of execution as the death penalty was a sentence open to the Iraq High Tribunal (Soering v UK [1989] 11 EHRR 439). This is very contentious point because as Michael Ignatiefe argues in some countries like Iraq and America death penalty is available which is a clear breach of the ECHR, but still a practice upon which the courts of the given above countries are allowed to adjudicate and send people to death, whilst in country like the UK the courts have to held public authorities liable because they extradited the people in question back to their countries to be sentenced and face death penalty (Soering principle – ‘death row’).