DECISION OF THE COMMISSION
AS TO THE ADMISSIBILITY OF
Application No. 14038/88
by Jens SOERING
against the United Kingdom
The European Commission of Human Rights sitting in private
on 10 November 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
C.L. ROZAKIS
Mrs. J. LIDDY
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 8 July 1988
by Jens Soering against the United Kingdom and registered
on 21 July 1988 under file No. 10438/88;
Having regard to
- the report provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the written observations submitted by the respondent
Government on 9 September 1988 and the observations in reply submitted
by the applicant on 4 October 1988;
- the parties' oral submissions at the hearing before the
Commission on 10 November 1988;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, Mr. Jens Soering, is a German citizen, born
in Thailand on 1 August 1966. He has lived in the United States of
America since he was 11 years old. The present application arises
out of his pending extradition to the United States inter alia on
charges of capital murder in respect of offences which were allegedly
committed when he was 18 years of age. He is at present detained at
HM Prison, Wormwood Scrubs, London, England.
The applicant is represented by Messrs. Powell Magrath and
Spencer, solicitors, London, and Mr. Colin Nicholls, Q.C., and
Ms. Clare Montgomery of counsel.
The facts of the case as they appear from the parties'
submissions may be summarised as follows:
On 13 June 1986 a grand jury of the Circuit Court of Bedford
County, Virginia, United States of America, indicted the applicant on
charges of murdering the parents of his girlfriend. The charges
alleged capital murder of both of them and the separate non-capital
murders of each.
On 31 July 1986 the Government of the United States requested
the applicant's extradition under the terms of the Extradition Treaty
between the United States and the United Kingdom of 1972. On
12 September 1986 a Magistrate at Bow Street Magistrates' Court was
ordered by the Secretary of State for Home Affairs to issue a warrant
for the applicant's arrest under the provisions of Section 8 of the
Extradition Act 1870. The applicant was subsequently arrested on
30 December 1986 at HM Prison Chelmsford after serving a twelve months'
prison sentence for cheque fraud. On 16 December 1986 and 30 January
1987 the applicant's then legal representative (Dr. Graupner), made
representations to the Secretary of State that the Order to the
Magistrate to proceed with the arrest of the applicant should have
been made in respect of the offence of manslaughter and not the
offence of murder. He referred, in particular, to the opinion
expressed in medical evidence that the applicant was suffering from a
mental condition which would warrant a verdict at his trial that he
was not guilty of murder but guilty of manslaughter by reason of
diminished responsibility. The Secretary of State rejected Dr.
Graupner's submissions in letters dated 12 February 1987 and 9 April
1987.
On 11 February 1987 the local court in Bonn issued two
warrants for the applicant's arrest in respect of the alleged murders.
On 11 March 1987 the Government of the Federal Republic of Germany
requested his extradition to the Federal Republic under the terms of
the Extradition Treaty between the Federal Republic and the United
Kingdom. The Secretary of State was then advised by the Director of
Public Prosecutions that, although the German request contained proof
that German courts had jurisdiction to try the applicant, the evidence
submitted consisted solely of admissions made by the applicant to a
representative of the German Government which did not, in the
Director's view, amount to a prima facie case against him and that the
magistrate would not be able to commit the applicant to await
extradition to Germany on the strength of them.
In a letter dated 20 April 1987 to the Director of the Office
of International Affairs, Criminal Division, United States Department
of Justice, the Attorney for Bedford County, Virginia (Mr. Updike)
stated that, on the assumption that the applicant could not be tried
in Germany on the basis of admissions alone, there was no means of
compelling witnesses from the United States to appear in a criminal
court in Germany.
On 20 May 1987 the Government of the United Kingdom informed
the Federal Republic of Germany of the United States request and
indicated that they proposed to consider this request in the normal
way. The United Kingdom Government further indicated that they had
sought an assurance from the United States authorities on the question
of the death penalty and that "in the event that the court commits
Mr. Soering, his surrender to the United States' authorities would be
subject to the receipt of satisfactory assurances on this matter".
On 1 June 1987 Mr. Updike swore an affidavit in his capacity
as Attorney for Bedford County in which he certified 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 a diplomatic note dated 17 May 1987 the Federal Government
of the United States undertook to ensure that the undertaking given by
the Attorney for Bedford County to make representations on behalf of
the United Kingdom would be honoured.
On 16 June 1987 at the Bow Street Magistrates' Court committal
proceedings took place before the Chief Stipendiary Magistrate. The
Government of the United States adduced evidence that on the night of
30 March 1985 the applicant killed William Reginald Haysom (aged 72)
and Nancy Astor Haysom (age 53) at their home in Bedford County,
Virginia. Death in each case was the result of multiple and massive
stab and slash wounds to the neck, throat and body. The applicant was
then 18 years old and his girlfriend, Miss Haysom, was then 20 years
old. Both were students at the University of Virginia.
In October 1985 the applicant and Miss Haysom travelled to
Europe. They were subsequently arrested on 30 April 1986 in England
on charges of cheque fraud. The Deputy Sheriff of Bedford County
travelled to Richmond to interview the applicant and gave evidence
that he admitted the killings. A similar admission was apparently
made to a German Public Prosecutor who also interviewed the applicant.
The applicant stated that he was in love with Miss Haysom and that her
parents were opposed to the relationship and that they had planned to
kill them. They rented a car in Charlottsville and travelled to
Washington where they set up an alibi. The applicant then went to the
parents' house, discussed the relationship with them and when they
told him they would do anything to prevent it, a row developed during
which he killed them with a knife.
At the committal proceedings, the applicant adduced inter alia
psychiatric evidence from a consultant forensic psychiatrist (Dr.
Bullard) that the applicant was immature and inexperienced and had
lost his personal identity in a symbiotic relationship with his
girlfriend - a powerful, persuasive and disturbed young woman. In Dr.
Bullard's opinion the applicant was suffering from a "folie à deux" -
a well recognised state of mind where one partner is so suggestible
that he believes in the psychotic delusions of the other. She
concluded that such a mental condition substantially impaired his
responsiblity for his acts and, under United Kingdom law, would
constitute a defence of diminished responsibility reducing the offence
from murder to manslaughter.
The Chief Magistrate found that the evidence of Dr. Bullard
was not relevant to any issue that he had to decide and committed the
applicant to await the Secretary of State's Order for his return to
the United States. On 29 June 1987 the applicant applied to the
Divisional Court for a writ of habeas corpus in respect of his
committal. On 11 December 1987 this application was refused. In the
course of his judgment in the Divisional Court rejecting the
application, Lord Justice Lloyd commented that an assurance under
Article IV of the Anglo-United States Extradition Treaty "must mean an
assurance by or on behalf of the Executive Branch of Government, which
in this case would be the Governor of the Commonwealth of Virginia.
The certificate sworn by Mr. Updike, far from being an assurance on
behalf of the executive, is nothing more than an undertaking to make
representations on behalf of the United Kingdom to the judge. I
cannot believe that this is what was intended when the Treaty was
signed."
On 30 June 1988 the House of Lords rejected the applicant's
petition for leave to appeal against the decision of the Divisional
Court.
On 10 March 1988 the Department of Justice of the United
States forwarded to the Government of the United Kingdom a further
affidavit sworn by Mr. Updike, Attorney for Bedford County, in which
he repeated the terms of the assurance previously given in the event
of the applicant's conviction for capital murder.
On 14 July 1988 the applicant petitioned the Secretary of
State, requesting him to exercise his discretion not to make an order
for the applicant's surrender under Section 11 of the Extradition Act
1870.
This request was rejected, and on 3 August 1988 the Secretary
of State signed a warrant ordering the Governor of HM Prison Wormwood
Scrubs to surrender the applicant to the United States authorities.
Relevant domestic law and practice
The law
relating to extradition between the United Kingdom and
the United States of America is governed by the Extradition Acts
1870-1935, the Extradition Treaty signed by the two States on 8 June
1972, and an Exchange of Notes between the United Kingdom and the
United States, dated 24 September 1987.
Extradition proceedings in the United Kingdom consist of an
extradition hearing before a magistrate, and Section 11 of the
Extradition Act 1870 provides that decisions taken in those
proceedings may be challenged by way of application for habeas
corpus. In practice, such application is made to a Divisional Court
and, with leave, to the House of Lords. Section 12 of the 1870 Act
provides for the release of a prisoner, if not surrendered, at the
conclusion of such proceedings or within two months of committal
unless sufficient cause is shown to the contrary.
In addition, it is established that the Secretary of State
enjoys a discretion in the exercise of his powers under Section 11 of
the 1870 Act not to sign the surrender warrant. This discretion may
override a decision of the courts that a fugitive should be
surrendered, and it is open to every prisoner who has exhausted his
remedies by way of application for habeas corpus to petition the
Secretary of State for that purpose. In considering whether to order
the fugitive's surrender, the Secretary of State is bound to take
account of fresh evidence which had not been before the magistrate.
Furthermore, it is open to the prisoner to challenge both the
decision of the Secretary of State rejecting his petition and the
decision to sign the warrant in judicial review proceedings. In such
proceedings the court may review the exercise of the Secretary of State's
discretion on the basis that it is tainted with illegality, irrationality
or procedural impropriety (Council of Civil Service Unions and Others v.
Minister for the Civil Service [1984] 3 All ER 935).
Under the rule of speciality a defendant cannot be tried on his
return to the United States for any offence which is not disclosed by
the facts on which his surrender has been based.
There is no provision in the Extradition Acts relating to the
death penalty, but Article IV of the Anglo-United States 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 this discretion is incorporated in the general
discretion vested in the Seretary of State by virtue of Section 11 of
the 1870 Act.
Where extradition requests are received in respect of the same
crime from two different States, priority is given to that which is
first in time. If both are received at the same time, the Secretary
of State decides which request is to be proceeded with, having regard
to all the facts of the case, including the nationality of the
fugitive and the place of commission of the offence.
COMPLAINTS
Article 3 of the Convention
The applicant submits that 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
Virginia, together with other aggravating conditions.
Article 6 of the Convention
The applicant submits that he is without the means to defend
himself. In the legal proceedings in England he was defended on legal
aid. His father has funded his application to the Commission and his
Attorneys in the United States to the extent immediately necessary for
his trial in the United States. The applicant has serious reasons to
believe that his father will not be able to fund the voluntary appeals
which he may require to pursue in order to avoid the imposition of the
death penalty. Under the provisions of Virginia law the accused may
be granted legal aid for the purpose of his automatic appeal to the
Supreme Court of Virginia. There are eight other appeals he can make
which will prolong his life by 6 to 10 years. However, for these
appeals legal aid is not available, unlike the position in other
States which have the death penalty. The applicant submits that this
constitutes a breach of Article 6 para. 3 (c) of the Convention.
Article 13 of the Convention
The applicant submits that he has no effective remedy before a
national authority as required by this provision. The courts, in
reviewing the decisions of the Secretary of State are restricted to
a consideration of whether it infringes the "Wednesbury principles"
(i.e. that no authority properly directing itself on the relevant law
and acting reasonably could have reached it). The Secretary of
State's decision is not therefore effectively reviewable by the courts
on the basis of the Convention. Moreover, the Secretary of State is
not required to have regard to the Convention when exercising his
discretion under Section 11.
It is further submitted that the Secretary of State in
deciding whether the applicant should be extradited cannot be regarded
as impartial or as enjoying the safeguards of judicial independence.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced before the Commission on
8 July 1988 and registered on 21 July 1988. On 11 August 1988 the
President of the Commission decided, in accordance with Rules 28 para.
3 and 42 para. 2 (b) of the Rules of Procedure to give notice of the
application to the respondent Government and to ask for their
observations on the admissibility and merits of the application
insofar as it raised issues under Articles 3 and 13 of the Convention.
No observations were requested in respect of the complaint under
Article 6 of the Convention. The President of the Commission also
decided on the same date to indicate to the Government of the United
Kingdom, in accordance with Rule 36 of the Commission's Rules of
Procedure
, that it was desirable, in the interests of the parties and
the proper conduct of the proceedings, not to extradite the applicant
to the United States until the Commission had an opportunity to
examine the application.
The Commission examined the application on 9 September 1988
and decided to prolong the above Rule 36 indication to the respondent
Government until the Commission had an opportunity to examine the case
in the light of the parties' observations during its October session
(3 - 14 October 1988).
The respondent Government's observations were received on
9 September 1988. The applicant's observations in reply were received
on 4 October 1988.
The Commission next considered the application on 13 October
1988 and decided to invite the parties to a joint hearing on the
admissibility and merits of the case insofar as it raised issues under
Articles 3 and 13 of the Convention.
The Commission also decided at this time to prolong the above
Rule 36 indication to the respondent Government until the Commission
had had an opportunity to examine the application in the light of the
parties' submissions at the oral hearing.
The hearing before the Commission was held on 10 November
1988.
The parties were represented as follows:
Respondent Government
Mr. M. C. WOOD Foreign and Commonwealth Office, Agent
Mr. M. BAKER Counsel
Mr. C. OSBORNE Home Office )
) Advisers
Mr. N. PARKER Foreign and Commonwealth Office)
The applicant
Mr. Colin NICHOLLS, Q.C. Counsel
Ms. C. MONTGOMERY Counsel
Mr. R. SPENCER Solicitor
Following the hearing, the Commission, having declared the
application admissible, decided on the same day to prolong the above
Rule 36 indication to the respondent Government until the Commission
had had a further opportunity to examine the application in the course
of its forthcoming December session (5 - 16 December 1988).
SUBMISSIONS OF THE PARTIES
The respondent Government
Article 3 of the Convention
The Government indicated that, for purposes of the hearing on
the admissibility and merits of the case, they accepted the
Commission's case-law as set out in in the Kirkwood case (No.
10479/83), Dec. 12.2.84, D.R. 37, pp. 158-191) that an issue could
arise under Article 3 of the Convention in a case of extradition.
1. Risk of imposition of the death penalty
The Government submit that the applicant does not run a
serious risk of receiving the death penalty and being subjected to
the "death row" phenomenon. They refer to the assurance they have
received from the Attorney for Bedford County and the existence of
important factors of mitigation likely to be taken into account by the
sentencing judge and jury.
In the case of a fugitive requested by the United States who
faces a charge carrying the death penalty in one of the States, the
practice of the Secretary of State pursuant to Article IV of the
Extradition Treaty is to secure an assurance from the prosecuting
authorities of that State that a representation will be made to the
judge at the time of sentencing that it is the wish of the United
Kingdom that the death penalty should be neither imposed nor carried
out. It would be a fundamental blow to the extradition arrangements
between the United Kingdom and the United States if the death penalty
were carried out on an individual who had been returned under those
circumstances. No fugitive surrendered under the Treaty with the
United States has been executed. The practice of the respondent
Government of seeking assurances was described in the following terms
by Mr. David Mellor, then Minister of State at the Home Office, during
a parliamentary debate on the Criminal Justice Bill on 10 March 1987:
"The written undertakings about the death penalty that the
Secretary of State obtains from the federal authorities
amount to an undertaking that the views of the United
Kingdom will be represented to the judge. At the time of
sentencing he will be informed that the United Kingdom does
not wish the death penalty to be imposed or carried out.
That means that the United Kingdom authorities render up a
fugitive or are prepared to send a citizen to face an
American court on the clear understanding that the death
penalty will not be carried out - it has never been carried
out in such cases. It would be a fundamental blow to the
extradition arrangements between our two countries if the
death penalty were carried out on an individual who had been
returned under those circumstances." (Col. 955 Hansard)
Although it is true that only the State authority can decide
whether assurances about the death penalty can be given, the United
States Government have recently assured the Government of the United
Kingdom that if the State gives an assurance that the death penalty will
not be imposed or carried out, the Federal Government can and will give
the United Kingdom a formal and binding undertaking to that effect.
In the present case, the Attorney for Bedford County,
Virginia, has provided an assurance that such a representation will be
made to the judge and his affidavit to this effect was transmitted by
the Governor of Virginia in support of the extradition request and
certified by the United States Department of Justice. This assurance
satisfies the United Kingdom Government of the unlikelihood of the
death penalty being imposed and of the unlikelihood of the applicant
being placed on death row. The seeking of such an assurance is an
important and sensitive diplomatic matter between sovereign States.
As such an ineffective assurance would have very serious consequences
for the extradition arrangements between the two countries.
Furthermore, the present assurance is the most that would be
permissible or acceptable under Virginian law, because neither the
Government nor the Attorney General has the authority to dictate to
either a prosecutor or to a trial court the charges to be tried or the
sentence to be imposed, although it is true that a State prosecutor
may in certain circumstances be prepared to undertake not to seek the
death penalty. In the present case the State prosecutor has
determined, on his assessment of the evidence, that a crime of capital
murder has been committed and he is therefore bound under Virginian law
to seek the death penalty. This is the only decision open to him.
The sentencing judge is under a legal duty to evaluate
independently whether the death sentence is "appropriate and just"
having regard to "any and all" relevant facts, including the
representation made in the name of the United Kingdom (Virginia
Code Section 19.2.264.5). It is thus not correct that the
sentencing judge is precluded by Virginian law from taking the United
Kingdom's representation into account. The representation by the
Governor may also be considered in any application for clemency.
2. The proceedings in Virginia
Even if the applicant acknowledges his participation in the
crime, the medical evidence already disclosed constitutes a strong
argument for a defence of insanity, i.e. that at the time the
offences were committed he was unable to distinguish right from wrong,
or that although he knew that what he was doing was wrong, he was
driven to do it by an irresistible impulse.
In a separate sentencing procedure, the jury can only impose
the death penalty if they are satisfied beyond reasonable doubt and
unanimous in their view either that there is a probability that the
applicant would commit further criminal acts of violence that would
constitute a continuing serious threat to society or that his conduct
was "outrageously or wantonly vile, horrible or inhuman".
The jury must also consider any evidence put forward in
mitigation and for this purpose, capital murder defendants are
entitled under Virginian law to the appointment of a mental health
expert to assist in the preparation and presentation of evidence
relating to the defendant's mental condition. In addition, the jury
is obliged to take into account certain specific matters, including
the age of the defendant at the time of the commission of the offence,
the lack of any previous criminal activity, the influence of extreme
mental or emotional disturbance of the defendant and any impairment to
his ability to conform to the requirements of the law. Even if these
matters do not persuade the jury who set the sentence, they must also
be taken into account by the judge who passes sentence. For this
purpose, the trial judge must order the preparation of an
investigative report detailing the defendant's history and other
relevant facts. Upon presentation and review of the report, the court
may set aside the sentence of death and impose a life sentence. The
discretion of the court is thus narrowly channelled to avoid any
arbitrary imposition of the death penalty and is subject to automatic
appellate review by the Supreme Court of Virginia. That court is
required by law to review the death penalty for arbitrariness and
proportionality in addition to its consideration of any errors in the
trial alleged by the defendant on appeal. In this respect the Supreme
Court of Virginia in a capital case fully and exhaustively considers
every claim raised by the appellant.
In the present case the court would be bound to take into
consideration crucial mitigating factors in fixing sentence. The
applicant was only 18 at the time of the offence. He had been in no
difficulties with the police and had a high scholastic record.
Furthermore, two eminent psychiatrists who examined the applicant in
England have attested that at the moment of the commission of the
offence his mental responsibility for his acts was substantially
impaired by an abnormality of the mind.
Against this background the Government submit that he was
unlikely to be sentenced to death.
It has recently been established under Virginian law that all
indigent prisoners who have been sentenced to death are entitled to
lawyers to assist them to pursue collateral challenges to their death
sentences in state habeas corpus actions (Giarratano v. Murray, 847
F.2d 1118 - 4th Cir. 1988) (en banc).
3. Extradition to the Federal Republic of Germany
The Government are not prepared to extradite or deport the
applicant to Germany in the face of what they see as a legitimate
prior request from the State where the offence was committed. It is
supported in this conclusion by the fact that the place of commission
of an offence is an important factor for choosing between simultaneous
extradition requests.
Once the Secretary of State has issued the magistrate with an
order to proceed in an extradition case, he has set in train a
judicial process which he has no power to terminate. It follows that
if, once an order to proceed has been given pursuant to a request from
one State, a request from a second State is received, the order to the
magistrate to proceed in relation to the first application cannot be
revoked. It might be possible, once those proceedings were completed,
for the Secretary of State to issue a further order to proceed in
respect of the request from the second State. However, it may be that
the magistrate would regard such a second request as being oppressive
and therefore dismiss the extradition application.
In the present case, the extradition request from the Federal
Republic of Germany was not received until some six months after the
order to proceed had been issued in relation to the request from the
United States of America. The Secretary of State was bound to give
priority to the first request. Having regard to the uncertainties
involved in the judicial proceedings in respect of the second request,
the Secretary of State would not have been justified in proceeding
with the German request once the judicial proceedings arising out of
the American request were completed. Moreover, the evidence adduced
in support of the German request would not have been sufficient to
satisfy the requirements of Section 10 of the 1870 Act.
4. Severity of treatment
Central to the applicant's complaint is the length of time
that will elapse between his being sentenced to death, and his
execution if that sentence is carried out. The average time between
trial and execution in Virginia is between six and seven years, that
average being based on the seven executions which have been carried
out following unsuccessful appeals, review and applications for
clemency since the reinstatement of the death penalty in Virginia in
1977.
The delays in capital cases are not attributable to the
post-conviction automatic appeal to the Supreme Court of Virginia, a
process which is normally completed within six months of conviction
and sentence. They are a result of successive collateral attacks in
the State and Federal courts on the final judgment of conviction and
sentence originally imposed by the trial court and affirmed by the
Supreme Court of Virginia on automatic appeal.
The desire to afford the condemned man every possible avenue
of appeal and review is consequently the cause of the delays.
Manifestly, delay rather than expedition serves the prisoner's
interest when the death sentence has been imposed. It is the
experience of the Virginia Attorney General's Department that
attornies representing prisoners on death row use every available
tactic to prolong the proceedings.
As regards the applicant's complaints concerning the prison
conditions which an inmate on death row experiences, the Government
note that inmates who have been sentenced to death are generally
imprisoned at the Mecklenburg Correctional Center, an eight year old
facility. The size of a prisoner's cell is 10 feet by 71/2 feet.
Prisoners have an opportunity for approximately 71/2 hours' recreation
per week in summer and approximately 5 - 6 hours per week in winter.
Every inmate has a job, cleaning the common areas or cleaning the
recreation yards. The conditions and facilities are governed by
policies and rules which are set out in documentary form in
Institutional Operating Procedures. These procedures cover all
aspects of the regime on death row and allocate responsibility to
particular prison officers for their implementation. They include
very specific provisions on medical and psychiatric evaluation and
treatment, on visiting rights and correspondence, on access to
attornies and to reading material, and on the conditions governing the
prisoners' work, food and recreation.
The Government note that the norms embodied in the Operating
Procedures of the Commonwealth of Virginia constitute rights which may
be enforced either by use of the grievance procedure under the Civil
Rights of Institutionalised Persons Act or by mechanisms provided
pursuant to a United States District Court Decree of 1985 which
provides further standards for conditions of confinement.
Alternatively, these rights may be enforced in separate legal
proceedings against prison officials in the State or Federal courts.
As regards the method of execution itself, medical experts
with experience of executions by electrocution agree that the subject
is rendered unconscious and incapable of experiencing pain or
suffering, if not actually dead, at the moment of the first electrical
surge. Furthermore, the Eighth Amendment to the Constitution of the
United States prohibits cruel or unusual punishment and the Supreme
Court of Virginia has rejected the argument that the method of
execution by electrocution in Virginia constitutes such a punishment.
In fact the Virginia procedure is used as a model by other States.
Furthermore, there is no procedural obstacle or precedent
which would prevent a challenge being made on appeal to the Supreme
Court of the United States that the delays involved constituted cruel
or unusual punishment under the Eighth Amendment. If such a case were
brought, the Supreme Court would apply its normal standards to
determine whether a writ of certiorari should issue for review of such
a case.
The Government submit that for the reasons set out above there
is no indication of any arbitrariness or unreasonableness either in
the machinery of justice of the Commonwealth of Virginia or the United
States of America or in the prison regime set up under the State
legislation.
The fact that the death row phenomenon derives almost entirely
from the fact that prisoners exercise all their collateral rights of
appeal goes to the heart of the dilemma identified by the Commission
in the Kirkwood case arising from the fact that Article 2 of the
Convention expressly permits the death penalty (loc. cit.). In that
case the Commission found that the delays inherent in death row in
California did not constitute a breach of Article 3 of the Convention
and the Government submit that insofar as the delays exist because of
the availability of avenues of appeal following compulsory review, the
delays in the present case similarly cannot constitute a violation of
Article 3. As regards the conditions in which prisoners sentenced to
death in Virginia are detained, it appears that the facilities
available for recreation, medical attention and contact with the
outside world are at least as good as those in California.
In Kirkwood, the Commission noted that it is for individual
High Contracting Parties to decide what conditions should govern their
extradition arrangements with other States and on the manner in which
they are to ensure compliance with the requirements of the Convention
in the exercise of State responsibility in extradition matters. The
Government accept that the assurance that they have obtained from the
Attorney for Bedford County, Virginia, does not amount to a legal
guarantee that the applicant, if sentenced to death, will have the
sentence commuted. The Government are, however, satisfied that the
assurance given is the best that can constitutionally be offered under
the law of Virginia.
Finally, in the Kirkwood case, the Government pointed out that
if the applicant could not be sent to the United States he would be
effectively irremovable and would have to be released from custody and
permitted to remain in the United Kingdom. If it were possible to
extradite the present applicant to the Federal Republic of Germany, he
would evidently not have to be permitted to remain in the United
Kingdom. Nevertheless, the Government are of the view that the German
extradition request has no relevance whatsoever to the issue under
Article 3 of the Convention. Moreover, the availability of
deportation as a practical means of resolving the problems raised by
this application is one which has no relevance at all to any of the
issues of principle or practice which the Commission is called upon to
determine.
For the reasons given above, the Government submit that the
applicant's complaint that his extradition to the United States of
America will violate Article 3 of the Convention is manifestly
ill-founded or, in the alternative, that there is no violation of the
Convention.
Article 13 of the Convention
The inhuman or degrading treatment or punishment upon which
the applicant's complaint is founded is an anticipated violation of
the Convention, and if it occurs it will occur in the United States.
For that violation he claims entitlement to an effective remedy in the
United Kingdom. The Government submit that an obligation to provide a
preemptive remedy in respect of a breach which may never occur is
liable to create real practical difficulties under Article 13. These
would relate both to the nature and the task of the domestic authority
charged with responsibility for deciding whether a violation was
likely and to the nature of the remedy required in order to avoid a
violation of Article 3.
In any event, the applicant has not substantiated his claims
under Article 3 of the Convention and in such circumstances the
Government do not consider that the applicant's claim can be described
as arguable. In this connection, the Government submit that it
follows from the judgment of the Court in the case of Boyle and Rice
(Eur. Court H.R., judgment of 27 April 1988, Series A No. 131) that
the circumstances will have to be very exceptional for a complaint
that is manifestly ill-founded to be nevertheless arguable. If,
however, the Commission should conclude that there is an arguable
claim in this case, the Government submit that the remedies available
are in any event effective.
It is accepted that no court in the United Kingdom has power
to review a discretionary decision by the Secretary of State to make
an extradition order in the face of a claim by the person concerned
that he would risk facing inhuman and degrading treatment if
extradited. However, it is submitted that the following remedies
available to the applicant, taken on their own or in aggregate, are
sufficient to satisfy the requirements of Article 13 in relation to a
claim that the extradition of a person to a particular country is
likely to lead to his being subjected to treatment that contravenes
Article 3.
The 1870 Extradition Act provides that decisions taken in
extradition proceedings may be challenged in the first instance before
a magistrate and then by way of an application for habeas corpus. Such
an application is made to the Divisional Court and, with leave, to the
House of Lords. In habeas corpus proceedings the court is empowered
to review all the evidence adduced in support of extradition and to
assess the compatibility of the extradition with the provisions of the
Extradition Act and the relevant Extradition Treaty between the United
Kingdom and the requesting State. If habeas corpus applications are
unsuccessful the prisoner may petition the Secretary of State. On a
petition to the Secretary of State the case is considered afresh and
all the matters that the petitioner chooses to adduce in support of
his case are taken into account. In exercising his discretion under
Section 11 of the 1870 Act, the Home Secretary is not acting as a
judge in his own cause. The Court recognised in the Silver case (Eur.
Court. H.R., judgment of 25 March 1983, Series A No. 61) that in
certain circumstances a petition to the Home Secretary would be an
effective remedy and having regard to the obligation of the Secretary
of State to carefully consider all the applicant's representations,
including the United Kingdom's obligations under the Convetion, it is
submitted that the right to petition the Home Secretary affords an
effective remedy for the purposes of Article 13.
Moreover, the availability of judicial review proceedings in
respect of that decision provides a further safeguard against any
illegal, irrational of improper exercise of discretion by the
Secretary of State. An interim injunction may be granted against the
Crown as a result of such proceedings (R. v. Licensing Authority ex
parte Smith, Kline & French Laboratories Ltd., decision of the Court
of Appeal dated 16 August 1988).
The applicant
Article 3 of the Convention
1. Risk of imposition of the death penalty
The applicant submits that Mr. Updike, the Attorney for Bedford
County, has declared publicly that he is seeking the death penalty in the
applicant's case and that he proposes to give no assurance to the United
Kingdom Government further to that which he has already provided. He has
also told the applicant's United States attorney that he will not negotiate
a plea because it is his policy to take all death penalty cases to trial
for determination by the court and jury.
The assurance which has been provided by Mr. Updike can have
no effect in a Virginian court since it is not a factor to be
considered by it under the relevant Virginian statute and its
consideration would inevitably raise constitutional issues of profound
importance. If the jury returns a death sentence verdict the judge
must impose a death sentence unless good cause is shown that the death
sentence should be set aside (Virginia Code, Section 19.2.264.5).
Neither the wish of the United Kingdom Government nor the future
foreign relations of the United States would constitute good cause as
to the issue of proportionality of sentence under Virginian law.
Nor is the Governor of Virginia required to have any regard to
the wishes of the United Kingdom Government.
Moreover, the assurance given is not an assurance that the
death penalty will not be carried out, and the statement by Mr. David
Mellor to the House of Commons on 10 March 1987 is not supported by
the terms of the assurance. Nor is it the best assurance that the
Attorney for Bedford County can provide. He could agree to reduce the
charge to first degree murder and thereby avoid the death penalty.
Equally, the Governor of Virginia could agree that if the jury
returned a verdict of death, then the sentence would not be carried
out or that he would commute the sentence to life imprisonment or
grant a permanent reprieve to the applicant.
The supporting assurance given by the Federal Government of
the United States similarly fails to amount to an adequate assurance
that the applicant will not be sentenced to death. The statement that
the death penalty has never been carried out following such an
assurance is inappropriate since the circumstances have never arisen
in previous extraditions and it is of no comfort to the applicant that
his execution may be harmful to Anglo-United States extradition
arrangements. In fact, the subsequent experience of both Errico (No.
12553/86, Dec. 7.7.87, to be published in D.R.) and Kirkwood (loc.
cit.) indicates that the State authorities do not consider themselves
inhibited by such an assurance.
The applicant refers to two recent cases concerning extradition
from the United States where effective assurances have been given
by the prosecution authorities that the death penalty will not be
imposed, namely, the case of Hamadei under a Federal indictment on
extradition from the Federal Republic of Germany and the case of Haake
on extradition proceedings from Spain to the State of Florida. The
applicant submits that if binding assurances could be given in those
cases, there can be no reason why such an assurance cannot be given in
his case. Although in Hamadei's case the indictment was Federal, in
the Haake case the assurance given consisted of an undertaking by the
State Attorney not to seek "the imposition of, or obtain the death
penalty ...".
2. The proceedings in Virginia
In Virginia a plea of diminished responsibility or its
equivalent is not a defence to a capital murder charge. In its
discretion a jury may sentence a prisoner to life imprisonment on
grounds of mental illness but it is not obliged to do so and there are
cases where it has not done so. Neither State nor Federal law
therefore prohibits the execution of persons who were mentally ill at
the time of commission of an offence if they are otherwise mentally
competent at the time of their execution. There is strong psychiatric
evidence that the applicant was mentally ill at the time it is alleged
he committed the offence. It is not contended, however, that the
applicant was insane within the meaning of that concept as defined
under Virginian law, rather that he suffered from an abnormality of the
mind at the time the offence was committed.
The applicant has received psychiatric treatment in prison
whilst awaiting extradition. Virginia has very recently proceeded
with the execution of a man who was much more seriously mentally ill
than the applicant (Morris Odell Mason). Moreover, extreme mental or
emotional distress may, as in the case of Morris Odell Mason, become
an aggravating factor as opposed to a mitigating factor when the jury
or judge are considering the likelihood that a prisoner will commit
further dangerous criminal acts.
There is consequently a serious risk that the applicant will
also be executed and it is submitted in this respect that the
execution of a person who was mentally ill at the time the offence was
committed constitutes inhuman and degrading treatment and punishment and
is prohibited by Article 3 of the Convention.
The judicial system in Virginia contains further
elements of arbitrariness not examined in Kirkwood. In particular,
the applicant's age at the time of the offence would only be a factor
to be weighed by the jury and would not constitute a bar to the
imposition of the death penalty. Furthermore, the wounds sustained
by Mr. and Mrs. Haysom, even considered alone, would constitute an
aggravated battery sufficient to satisfy the requisite test of
"vileness" for the imposition of the death penalty under Virginia
law. As a matter of practice, therefore, the burden of proof will
effectively have shifted to the applicant at the sentencing stage to
submit evidence in mitigation in order that the death penalty should
not be imposed. Moreover, the law of Virginia exempts Ms. Haysom from
the death penalty on the basis of the "triggerman" principle but
evidence as to the result of her trial for the same crime is
irrelevant to the jury's determination of the appropriate sentence in
the applicant's case.
Under Virginian law the defendant may be granted legal aid
for the purpose of his automatic appeal to the Supreme Court of
Virginia. There are, however, eight other appeals in respect of
which it is not established under Virginian law whether legal aid is
available.
The Virginia Supreme Court's review of the death sentence
is limited to issues of arbitrariness and proportionality. It is
also restricted to objections which have been taken at trial under the
"contemporaneous objections rule". In its review, the Supreme Court is
restricted under the Code in its comparison of the facts of the case
on review to cases in which the death penalty was affirmed as opposed
to those in which it has been overturned. If juries generally impose
the death sentence for conduct similar to that of the defendant, then
the sentence is not excessive or disproportionate. Since 1977 that
court has affirmed all but six of the 53 death sentences it has
reviewed, i.e. 88%, as compared with the national average of 50%.
The Court has never found that a capital sentence was imposed "under
the influence of passion, prejudice or any other arbitrary factor" or
that a sentence of death was "excessive or disproportionate to the
penalty imposed in similar cases".
The restricted nature of the automatic appeal to the Supreme
Court of Virginia means that the applicant's case, unlike that of
Kirkwood, is not one where the prisoner fails in a comprehensive
automatic appeal system and chooses voluntarily to repeat his appeals
in the hope of succeeding eventually. It is rather a situation in
which he is denied a comprehensive right of appeal at an early stage
and subjected to the death row phenomenon because of the limitations
of the appeal system.
Since 1977 no Governor of Virginia has commuted a death
sentence. Furthermore, Virginian law places restrictions on the
Governor's exercise of that discretion which are not found in the
laws of other States.
3. Extradition to the Federal Republic of Germany
The applicant submits that the existence of a competing
extradition request in respect of the offence for which his
extradition is sought from the Federal Republic of Germany is,
contrary to the Government's submission, a highly relevant factor in
the determination of the applicant's claims under the Convention.
This factor was not present in the Kirkwood case.
The view of the Director of public prosecutions of the United
Kingdom that the applicant's tape-recorded confession to a public
prosecutor of the Federal Republic of Germany would not amount to a
prima facie case against the applicant is incorrect. The decided
cases in England relating to sufficiency of evidence in extradition
cases make it clear that so long as there is some evidence, the
magistrate may commit the applicant for return (e.g. R. v. Domat
[1986] 82 Cr App R 173). A confession statement would clearly
constitute a prima facie case that the applicant had committed the
offence. Moreover, the view of the Director of Public Prosecutions is
inconsistent with that of the Government of the Federal Republic which
clearly considers that there is sufficient evidence to support its
warrant of arrest.
Although there is no means of compelling Government witnesses
in the United States to give evidence in Germany, most of the relevant
witnesses in the applicant's case appear to be United States
officials. Moreover the applicant's admissions were also witnessed by
various British police officers. It is inconceivable that witnesses
would not be willing to give evidence in the Federal Republic if
requested to do so and on receipt of an undertaking that they would be
paid their expenses. In the Hamadei case, the German Government were
able to secure the testimony of numerous United States citizens to
establish the case against him. It is also inconceivable that a
magistrate in the United Kingdom would regard German extradition
proceedings as oppressive in the applicant's case in circumstances
where they are based on humanitarian considerations and particularly
if a decision to extradite to Germany had been taken in pursuance of an
indication or decision of the Commission.
The applicant can also be deported to the Federal Republic of
Germany, which is obliged to receive him as one of its citizens. The
applicant is liable to such deportation as an illegal entrant or as an
overstayer under United Kingdom law and he would be arrested
immediately upon his return to Germany.
4. Severity of treatment
The rights guaranteed under Article 3 of the Convention are
absolute rights which do not permit any margin of appreciation in the
State authorities as to the scope of their application or as to the
measures necessary to protect them. The concept of inhuman or
degrading treatment is, however, capable of expansion with time and
the applicant submits in this respect that it is the emerging State
practice of European countries to secure an adequate assurance that
the death penalty will not be carried out in the case of extradition
to the United States. This is borne out by the cases of Haake and
Hamadei described above.
The only relevant factor is whether there exists an objective
danger of treatment contrary to Article 3 for the person extradited,
and the applicant contends that an assessment of the situation
existing in Virginia indicates that there is a "real" risk that his
rights under Article 3 will be violated. He further contends that
there are factors of unreasonableness and arbitrariness present in his
case which were not present in Kirkwood. The applicant also points out
that the conditions in the United States have not changed in the way
anticipated by the Commission in Kirkwood.
Since 1976 seven people have been executed in Virginia.
Currently thirty-six people are on death row, all men, eighteen black
and eighteen white. The length of time between sentencing and
execution depends on the number and complexity of appeals. Information
available from the Capital Punishment Project in New York shows that
the time has varied between 3.5 and 8 years and can possibly be as
long as 12 years. The average is between six and eight years and the
minimum, discounting the case of a person who waived his right to
appeal, is 4.5 years. The applicant submits that both the greater
frequency of execution in Virginia as opposed to California and the
longer periods of delay in Virginia are reasons to distinguish the
applicant's case from that of Kirkwood. As submitted above, it is a
distinguishing feature of the present case that the delays in the
appeal system of Virginia do not arise from a situation where the
prisoner chooses voluntarily to successively repeat a comprehensive
appeal but rather one where the initial automatic appeal is inadequate
and where the subsequent appeals may be seen as attempts to remedy
that inadequacy. The death row phenomenon is further aggravated by
delays in executions consequent upon the massive backlog of prisoners
currently awaiting execution in the United States.
The treatment to which the applicant will be exposed is
therefore not necessary to issue a full and just review. Furthermore,
and having regard in particular to the applicant's age and mental
disability, it is likely that in waiting for his execution over a
substantial period of time his personality will develop and change so
that although a sentence of death may have been appropriate at the
time sentence was passed, it may no longer be so at the time of
execution. The applicant will in effect be a different person. The
cruel effect of the death row phenomenon in the applicant's case is
further exacerbated in that the treatment to which he will be exposed
may aggravate his mental disability.
As regards prison conditions on death row in Virginia, the
actual livable area of a prisoner's cell is about 5 feet by 6 feet and
the actual recreation time averages six hours per week when the
prisoners are not locked down. A lock down occurs for the
actual or imagined discipline violation of any death row inmate and
non-offending inmates are locked down along with the offending ones.
Irrespective of the provisions of the operating procedures, it is
common practice that death row inmates are locked down for long
periods each year. In 1987 the death row inmates were locked down for
approximately five months, thus making the average recreation time for
a death row prisoner less than three hours a week. During a lock
down, the prisoners are not allowed out of their cells for any reason
other than to eat.
Each inmate's job lasts only four to six weeks per year during
which he is paid $27 per month. The actual administration of health
care to an inmate is meagre. One death row inmate has died and two
others have committed suicide since 1977. There is no physician-
patient confidentiality and routine psychiatric treatment consists of
2-3 minute examination followed by medication. Over one half of all
death row inmates are receiving large doses of thorazine, a
psychotropic drug. Furthermore, a prisoner must petition the Governor
of the prison in order to obtain a contact visit. Since 1977 the
Governor has allowed only 2 contact visits, both of which have
occurred the day before execution.
As regards the method of execution, the applicant notes that
only twelve States of the 37 with the death penalty now use
electrocution. In Virginia this process is achieved by administering
a 55-second electric shock to the prisoner's body which has the effect
of causing blisters to appear on the prisoner's legs, his skin to
stretch and smoke to emanate from his body. There are hours of
preparation beforehand including three hours during which the prisoner
waits in a cell after his head and his leg have been shaved. This is
a particularly horrifying and degrading form of punishment which has
been held not to constitute cruel and unusual punishment under
Virginia and United States law (Glass v. Louisiana, 105 S. Ct 2159
(1985)).
Article 13 of the Convention
Contrary to the submissions of the Government, it follows from
the decision of the High Court in the Kirkwood case that the Secretary
of State is under no obligation as a matter of domestic law to have
due regard to the Convention in the exercise of his discretion under
Section 11 of the 1870 Act (R. v. Secretary of State for the Home
Department ex parte Kirkwood [1984] 2 ALL ER 390). The ruling of the
High Court in the Kirkwood case reflects the "dualist" principle of
United Kingdom law that treaties which have been ratified do not
confer rights on individuals (Republic of Italy v. Hambro's Bank
[1950] 1 All E.R. 430).
Moreover, the mere fact that the Secretary of State in the
applicant's case may have regard to the provisions of the Convention
does not provide the applicant with a domestic remedy for a breach of
the Convention. Nor can the Secretary of State be regarded as
sufficienty impartial and independent in this respect. Judicial
review does not provide a safeguard against such breach since, as in
the case of Kirkwood, the court is only concerned as to whether the
Secretary of State's decision was unreasonable within the meaning of
the Wednesbury principles. Furthermore, although it is accepted
on recent authority that a court may grant an interim injunction
against the Crown, that fact is irrelevant to the court's jurisdiction
to apply the provisions of the Convention.
In addition, there is no statutory right to petition the
Secretary of State to exercise a general discretion not to order the
return, although Kirkwood, Errico and the applicant have all adopted
this procedure simultaneously with their applications to the
Commission under the Convention. In this respect the applicant
contests the assertion of the Government that the dismissal of the
petition on the one hand and the making of an order for return on the
other, i.e. the acts which constitute the breach of Article 3 of the
Convention, are subject to judicial review.
THE LAW
The applicant complains under Article 3 (Art. 3) of the
Convention of his imminent extradition to the Commonwealth of Virginia
in the United States of America on a charge of capital murder. He
also complains under Articles 6 para. 3(c) (Art. 6-3-c) and 13 (Art.
13) of the Convention.
Article 3 (Art. 3) of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
Article 6 para. 3 (c) (Art. 6-3-c) of the Convention reads as
follows:
"3. Everyone charged with a criminal offence has the
following minimum rights:
...
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when
the interests of justice so require;"
Article 13 (Art. 13) of the Convention reads as follows:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
The applicant first submits that there is serious reason to
believe that he would, if extradited to Virginia, be subjected to
inhuman and degrading treatment and punishment in contravention of
Article 3 (Art. 3) of the Convention. He considers that there is a
serious likelihood that he will be convicted and sentenced to death
and subjected to the "death row phenomenon" while awaiting the outcome
of various State and Federal appeals against the death penalty. He
points out that in Virginia the average period spent on death row
awaiting the outcome of collateral State and Federal appeals is
between six and eight years.
The applicant states that this likelihood exists
notwithstanding the assurance that has been given to the respondent
Government by the Attorney of Bedford County, Virginia, that should
the applicant be convicted of the offence of capital murder as
charged, a representation would be made in the name of the United
Kingdom to the judge at the time of sentencing that it was the wish of
the United Kingdom that the death penalty should not be imposed or
carried out. In the applicant's submission, if a jury returns a death
sentence verdict, the judge must impose a death sentence and is under
no obligation under Virginian law to take such an assurance into
account. Moreover, it is contended that the respondent Government
could have secured a better assurance, namely that the Attorney of
Bedford County agree to reduce the charge to first degree murder, or
that the Governor of Virginia agree to commute a death sentence to
life imprisonment.
The applicant also claims that he suffered from a mental
abnormality at the time of the commission of the alleged offence such
as to substantially impair his responsibility for his acts and that
this circumstance is neither a defence to a charge of murder under
Virginian law nor a ground on which the court is precluded from
imposing the death sentence.
The applicant submits that, in such circumstances, the
respondent Government should give priority to a later request for the
applicant's extradition in respect of the same offences to the Federal
Republic of Germany, of which he is a national.
The applicant complains further that although under Virginia
law the accused may be granted legal aid for the purpose of his
automatic appeal to the Supreme Court of Virginia, there are eight
other voluntary appeal procedures for which legal aid is not
available. The applicant has serious reason to believe that he will
be unable to fund the voluntary appeals which he may require in order
to avoid the imposition of the death penalty, and submits that the
denial of legal aid in such circumstances constitutes a breach of
Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.
Finally, the applicant complains under Article 13 (Art. 13) of
the Convention that there exists under United Kingdom law no effective
remedy in respect of his Article 3 (Art. 3) complaint that he is
likely to be subjected to the "death row phenomenon".
The respondent Government observe that it cannot be assumed
that the applicant will actually be sentenced to death, having regard
to important mitigating facts such as his age, mental condition and
absence of criminal record. They point out that the automatic appeal
to the Supreme Court of Virginia is normally completed within a six
month period and that the length of time spent on death row in
Virginia is determined by the exercise by prisoners of collateral
rights of appeal to both State and Federal courts following the review
by the Supreme Court. The Government submit that no issue under
Article 3 (Art. 3) of the Convention can arise for delays that are
derived substantially from the voluntary exercise of such appeal
rights.
The Government accept that the assurance they have received
does not amount to a legal guarantee that the applicant, if sentenced
to death, will have the death sentence commuted. They are
nevertheless satisfied that the assurance given is the best that can
constitutionally be offered under the law of Virginia. Moreover, it
is not open to the Federal authorities to compel a State to give a
stronger assurance. They point out that, within the diplomatic
context of an extradition treaty, both the respondent Government and
the United States are aware that an ineffective assurance could have
very serious consequences for the extradition arrangements between the
two countries. It is therefore likely that the assurance will have
the desired effect.
Reference is also made to the existence of important
safeguards against the arbitrary imposition of the death penalty in
Virginia, namely, that the penalty may only be imposed if one of the
statutory aggravating circumstances is proved to exist beyond
reasonable doubt at a separate sentencing hearing. Moreover, a
post-sentence investigative report concerning the accused's background
is reviewed by the trial judge and an automatic review of the trial
and sentencing proceedings is carried out by the Supreme Court of
Virginia. In addition, an accused's mental condition can be taken into
consideration at the separate sentencing procedure.
The Government contest the applicant's assertion that legal
aid is not available under Virginian law for the purposes of voluntary
appeals in cases of capital murder.
Finally, it is contended inter alia that the applicant's
complaints are not arguable in terms of the Convention and that
therefore no issue arises under Article 13 (Art. 13) of the Convention.
The Commission considers, in the light of the parties'
submissions, that the application as a whole raises complex issues of
law and fact under the Convention, the determination of which depends
on an examination of the merits of the application.
It concludes, therefore, that the application cannot be
regarded as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention and no other ground for
declaring it inadmissible has been established.
For these reasons
, the Commission
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)