Chahal Dilemma Part ii- Jens Soering
Jens Soering was a German national. In1985, he was studying at the University of Virginia with his girlfriend, a Canadian, Elizabeth Haysom. They were both arrested in the UK in 1986 in connection with cheque fraud. Whilst in custody, they were interviewed by investigators from the Sheriff’s Department from Bedford County Virginia. It was alleged they has both been involved there in the killing of m/s Haysom’s parents. Mr Soering, it appears, admitted the killing and shortly after a Grand Jury in Bedford County handed down indictments alleging both capital and non-capital murder against both. The UK government sought an undertaking from the US authorities in the following terms:
“Because the death penalty has been abolished in Great Britain, the Embassy has been instructed to seek an assurance, in accordance with the terms of ... the Extradition Treaty, that, in the event of Mr Soering being surrendered and being convicted of the crimes for which he has been indicted ..., the death penalty, if imposed, will not be carried out. Should it not be possible on constitutional grounds for the United States Government to give such an assurance, the United Kingdom authorities ask that the United States Government undertake to recommend to the appropriate authorities that the death penalty shouldnot be imposed or, if imposed, should not be executed."The Bedford County Attorney responded 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 1989, the European Court of Human Rights had to decide on the lawfulness of the extradition and whether and to what extent Article 3 of the Convention engaged in circumstances where Soering, on conviction, was at risk of the death penalty in Virginia. This is an extradition case. But the powerful decision of the Strasbourg Court has relevance to the government’s “Chahal Dilemma".This is what the Strasbourg Court said about the importance of Article3.
“Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 in time of war or other national emergency. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It is also to be found in similar terms in other international instruments such as the 1966 International Covenant on Civil and Political Rights and the 1969 American Convention on Human Rights and is generally recognized as an internationally accepted standard.
The question remains whether the extradition of a fugitive to another State where he would be subjected or be likely to be subjected to torture or to inhuman or degrading treatment or punishment would itself engage the responsibility of a Contracting State under Article 3. That the abhorrence of torture has such implications is recognized in Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that "no State Party shall ... extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture". The fact that a specialized treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 of the European Convention. It would hardly be compatible with the underlying values of the Convention, that "common heritage of political traditions, ideals, freedom and the rule of law" to which the Preamble [of the Convention] refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3 , would plainly be contrary to the spirit and intendment of the Article, and in the Court's view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article.This was approved by the House of Lords in Regina v. Special Adjudicator (Respondent) ex parte Ullah (FC) (Appellant).
posted by Tony @ Friday, August 26, 2005
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