AS TO THE ADMISSIBILITY
Application No. 12553/86
by N.E.
against the United Kingdom
The European Commission of Human Rights sitting in private
on 7 July 1987, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
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 24 November
1986 by N.E. against the United Kingdom and
registered on 24 November 1986 under file No. 12553/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to:
- The Rapporteur's decision of 24 November 1986 to bring the
application to the notice of the respondent Government and
to request information pursuant to Rule 40 (2)(a) of the
Rules of Procedure concerning the imminency of the surrender
of the applicant to the authorities of the United States
of America;
- The respondent Government's reply dated 28 November 1986;
- The Commission's decision of 9 December 1986 to invite the
respondent Government pursuant to Rule 42 (2)(b) of the
Rules of Procedure to submit written observations on the
admissibility and merits of the application;
- The observations submitted by the respondent Government on
4 March 1987 and the observations in reply submitted by the
applicant on 13 April 1987;
- The Commission's decision of 14 May 1987 to invite the
parties to make further submissions at a hearing pursuant to
Rule 42 (3)(b) of the Rules of Procedure to be held on
13 July 1987;
- The applicant's representatives' telex of 1 July 1987
informing the Commission of his wish to withdraw the
application;
- The President of the Commission's decision of 1 July 1987 to
cancel the proposed hearing;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the applicant may be
summarised as follows:
The applicant, allegedly a United States national born in
1957, is represented before the Commission by Mr. Colin Nicholls, Q.C.
and Mr. David Spens of counsel, instructed by Messrs. Trevor Hamlyn,
solicitors of London.
On 6 April 1981, in the District Court for the Southern
District of Florida, the applicant was convicted of possessing
marijuana with intent to distribute. On 21 May 1981, he was sentenced
to five years' imprisonment. He appealed against his conviction. On
29 October 1982, his appeal was dismissed. He then being on bail
was called upon to surrender to serve his sentence.
In 1985 he was indicted by a grand jury at the same court for
various offences arising out of smuggling marijuana into Florida and
distributing it, for three offences of kidnapping and three of murder.
A warrant was issued for his arrest. He avoided arrest. On
5 September 1985, at Heathrow Airport, the applicant was arrested by
officers of the Metroplitan Police for possessing two flick knives, an
offence contrary to Section 1 of the Prevention of Crime Act 1953,
carrying a maximum penalty of two years imprisonment.
On 13 September 1985, a warrant for his arrest was issued
under the provisions of Section 8 of the Extradition Act 1870, ("the
Act") for one of the murders above mentioned. He was kept in custody.
The Government of the United States of America requested his
extradition under the terms of the Extradition Treaty between the
United States and the United Kingdom of 1972, incorporated in the
United States of America (Extradition) Order 1976 (S.I. 19176
No. 2144).
On 14 November 1985, the Secretary of State for Home Affairs
issued two orders under Section 8 of the Act, one referring to the
offence for which the applicant was convicted and one for the offences
for which he was wanted for trial in the United States, requesting a
Magistrate at Bow Street to proceed in conformity with the provisions
of the Extradition Acts 1870-1936 ("the Extradition Acts").
On 13 March 1986, at the Bow Street Magistrates' Court,
committal proceedings took place before the Chief Metropolitan
Magistrate. The evidence produced by the Government of the United
States discloses that between 1979 and 1983 the applicant was active
in a drug smuggling organisation run by a man named R.T. R.T. was a
United States' citizen who owned and lived near a yacht centre in Fort
Lauderdale, Florida. His yachts went from the centre to seas round
the Bahama Islands where they were loaded with marijuana from waiting
freighters. The drugs were taken to the centre and distributed in the
United States.
The applicant provided security services for the organisation.
According to the evidence, R.T. fell out with three members of the
organisation and employed the applicant and others to kidnap and
murder them. The first victims were two men, R.V. and T.H. In
July 1980, the applicant, a certain D. and another man, kidnapped them
and tied them up overnight in one of R.T.'s yachts. The following day
they took them seven miles out to sea in another of R.T.'s yachts,
where the applicant shot R.V. and D. shot T.H. Their weighted bodies
were then pushed overboard. They were not seen again.
The third victim was J.S. Early in 1982 the applicant with
another kidnapped him and kept him at the centre overnight. The
following day R.T. and the other man took J.S. out in one of R.T.'s
boats, shot him and pushed him overboard. The applicant did not go on
the trip, but was present when the murder was discussed and was at the
centre when R.T. returned and J.S.'s car was cut up and the parts
dispersed.
At the committal proceedings it was urged on behalf of the
applicant that:
(1) the Chief Magistrate could not commit the applicant
for return in respect of the R.V. and T.H. murders, since
they were committed outside the territorial jurisdiction
of the United States, and
(2) he could not commit the applicant for return in
respect of the J.S. murder, since there was insufficient
evidence that the murder was intended to take place within
the territorial jurisdiction of the United States.
The Chief Magistrate committed the applicant to await the
Secretary of State's order for his return to the United States in
respect of all three murders and the kidnapping and drugs offences
referred to in the Secretary of State's Orders to Proceed.
The applicant applied to a Divisional Court of the High Court
for leave to apply for a writ of habeas corpus in respect of his
committal to await his return in respect of the three offences of
murder.
On 31 July 1986 his application was refused. He applied to
the Divisional Court for leave to appeal to the House of Lords. That
application was refused. On 13 August 1986, the applicant petitioned
the House of Lords for leave to appeal against the decision of the
Divisional Court in respect of the R.V. and T.H. murders. He did not
petition in respect of the J.S. murder. The applicant's petition for
leave to appeal to the House of Lords was heard and rejected by the
House of Lords on 24 November 1986.
On 21 November 1986 the applicant petitioned the Secretary of
State for Home Affairs to exercise his discretion under Section 11 of
the Extradition Act 1870, not to order his surrender to the
authorities of the United States, on the ground that it would cause
serious risk of his being subject to inhuman and degrading treatment
or punishment, contrary to Article 3 of the European Convention on
Human Rights. The Secretary of State refused to exercise his
discretion and dismissed the petition.
Relevant domestic law and practice
in the United Kingdom as submitted by the applicant
The law relating to extradition between the United Kingdom and
the United States of America is governed by the Extradition Acts and
the Treaty signed by the two States on 8 June 1972. The Treaty is
embodied in an Order in Council, No. 2144 of 1976. For there to be a
successful request, the offence charged in the United States warrant
must be an "extradition crime". What is an "extradition crime"
depends on the Treaty, and it is only a crime in respect of which
extradition may be granted if it is included in the Extradition Acts
or some other relevant statute as an "extradition crime". Section 26
of the Act provides that the term "extradition crime" means a crime
committed in England or within English jurisdiction which would be one
of the crimes described in the First Schedule to the Act. The list
includes murder.
Article III of the Treaty provides:
"(1) The extradition shall be granted for any act or omission
the facts of which disclose an offence within any of the
descriptions in the Treaty ... or any other offence if
(a) the offence is punishable under the law of both
Parties by imprisonment or other form of detention for
more than one year or the death penalty.
(b) the offence is extraditable under the relevant law
being the law of the United Kingdom.
(c) the offence constitutes a felony under the law of
the United States of America."
There is no provision in the Extradition Acts relating to the
death penalty.
Article IV of the 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 the discretion in Article IV is vested in the
Secretary of State by Section 11 of the Act. It is not available
to be argued until the fugitive has exhausted his legal remedies at
committal or by way of appeal for a writ of habeas corpus. The terms
of Section 11 are:
"If the police magistrate commits a fugitive criminal to
prison, he shall inform such criminal that he will not be
surrendered until after the expiration of fifteen days, and that
he has a right to apply for a writ of habeas corpus.
Upon the expiration of the said fifteen days, or if a writ of
habeas corpus is issued, after the decision of the court upon
the return of the writ, as the case may be, or after such
further period as may be allowed in either case by the
Secretary of State, it shall be lawful for the Secretary of
State by warrant ... to order the fugitive criminal ... to be
surrendered to such person as in his opinion be duly authorised
to receive the fugitive criminal by the foreign state ... and
such foreign criminal shall be surrendered accordingly.
It shall be lawful for any person to whom such warrant is
directed and for the person so authorised ... to receive, hold
in custody and convey within the jurisdiction of such foreign
state the criminal mentioned in the warrant ..."
It is the English practice before surrendering a fugitive who
is liable to the death penalty to seek the best assurances from the
requesting State that the death penalty will not be carried out,
although it is generally impossible for the requesting State to give a
binding guarantee as to this. According to the Report of an
independent working party of the Home Office, published in 1982, it
would appear that in the rare cases where the problem has arisen, the
United Kingdom has been able to obtain an assurance that a
recommendation against the imposition or execution of the death
penalty will be made in appropriate quarters, and in some cases
evidence has been provided that the death penalty is not carried out
for the offence in question. It would appear that the United Kingdom
Government have never refused to surender a fugitive on these grounds.
The practice referred to in the Report of that working party
is to be contrasted with the attitude of the Government of the Federal
Republic of Germany. During the 159th Session of the European
Commission of Human Rights in Application No. 9539/81 the applicant
complained of his extradition to Turkey where he risked execution.
The Government ultimately decided to refuse extradition since the
Turkish Government refused to confirm that the sentence would not be
carried out. The application was then struck out at the applicant's
request.
Relevant law and practice in the United States
of America as submitted by the applicant
For the purposes of extradition, the law of the United States
of America includes the law of any of its States. The provisions
relating to the crime of murder in the law of Florida are as follows:
Florida Statute 782.04(1)(a) provides that:
"[T]he unlawful killing of a human being, when perpetrated from
a premeditated design to effect the death of the person killed
or any human being, or when committed by a person engaged in
the perpetration of, or in the attempt to perpetrate, any ...
kidnapping ... placing or discharging of a destructive device
or bomb ..., shall be murder in the first degree and shall
constitute a capital felony, punishable as provided in
s.775.9082."
Florida Statute 921.141 provides for further proceedings in
which the court is required to conduct a separate sentencing
proceeding to determine whether the defendant should be sentenced to
death or life imprisonment. Further provisions are made for there to
be an automatic appeal to the Supreme Court of Florida and power is
given to the Governor to stay execution.
The separate sentencing proceedings and the automatic appeal
therefrom operate in the following way. Where an accused is convicted
of first degree murder the same trial judge and the same jury
reconvene to hear argument on sentence. Any evidence thought relevant
to this issue may then be pleaded and the jury must reach a conclusion
on the effect of any aggravating or mitigating factors. Their
conclusion as to whether the death penalty should be imposed is
subject to the overriding decision of the judge. If the judge does
override the jury's verdict and imposes a death sentence the reasons
for this must be given in writing.
All death sentence cases are automatically reviewed by the
Supreme Court of Florida. Such review must, in accordance with
Florida Statute Section 921.141(4), be commenced within 60 days of the
certification of the entire record by the sentencing court, a period
which may be extended by up to 30 days by the Supreme Court for cause.
Nevertheless, in view of the large number of persons sentenced
to death in Florida (over 200 are currently on "death row"), a study in
1982 of the timetable of 16 death penalty cases on appeal to the
Supreme Court of Florida revealed that an average of two years and
eleven months elapsed before judgment under the automatic review
procedure was given, notwithstanding that the above-mentioned Section
provides that the review "shall have priority over all other cases".
Thereafter the applicant may file a petition of certiorari
with the Supreme Court of the United States. If such a petition is
rejected the State Clemency Board is convened to consider any reasons
why the death penalty should be commuted. The Board may be expected
to sit (according to the same survey) some six months after the
Supreme Court's rejection of a certiorari petition. Its decision
usually follows some two months later. If clemency is denied, the
State Governor signs a death warrant which will be executed some
thirty days later, unless further appeals are then made.
The avenue for any such further appeals would be by
application to the trial judge, appeal to the Supreme Court of
Florida, appeal to the Federal District Court, further appeal to the
United States' Eleventh Circuit Court of Appeals in Atlanta and
thence, again, to the Supreme Court of the United States.
Matters relevant to the imposition of the death penalty
in the case of the applicant
It is understood that the Government of the United States is
seeking the death penalty in respect of all three murder offences.
The applicant's co-accused R.T. has recently been tried and
convicted of the murder of J.S. The jury recommended a sentence of
life imprisonment, but the trial judge overrode the jury's decision
and sentenced him to death. R.T. was also sentenced to life
imprisonment without parole in respect of drugs offences. He still
awaits trial in respect of the murders of T.H. and R.V.
Those representing the applicant have enquired of the
Secretary of State for Home Affairs and the Director of Public
Prosecutions, whether the Secretary of State has sought from the
United States' authorities an assurance under Article IV of the
Anglo-U.S. Extradition Treaty that the applicant will not be executed
and whether one has been given. The applicant's solicitors have
received a letter dated 24 October 1986 from the Crown Prosecution
Service, containing an affidavit of the Assistant State Attorney, who
is now responsible for the prosecution of the applicant, under
certification of the Governor of Florida in which he states that:
"[I]n accordance with Article IV of the Treaty of
Extradition between the United States and the United Kingdom,
I hereby certify that should (the applicant) be convicted of
the offences with which he is charged in Broward County,
Florida, as more fully described in the extradition papers
previously submitted, 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. Finally I
certify that I have discussed this matter with an authorised
representative of the State Attorney for the 17th Judicial
Circuit, in and for Broward County, Florida and that the
State Attorney concurs in offering this assurance in support
of the extradition of (the applicant)."
The letter from the Crown Prosecution Service also states that
it is understood that the assurance is regarded as satisfactory by the
Home Secretary.
It is submitted that in the circumstances of the applicant's
case, particularly the multiplicity of murders, their deliberation,
the manner in which they were committed and the applicant's
involvement with racketeering and drug trafficking, together with the
history of the death penalty in Florida, the said assurance is not
satisfactory, and gives serious reason to believe the applicant will
still be exposed to the "death row phenomenon". The assurance can have
no real effect on the Florida court, since it is not a factor to be
considered by it under the relevant Statute, and its consideration
would inevitably raise constitutional issues of profound importance.
The applicant has in mind that Ernest Major Kirkwood (No.
10479/83 Dec. 12.3.84, D.R. 37 p. 158) who was returned to the United
States by the United Kingdom on 15 March 1983, has had various
pre-trial motions to avoid trial for Capital Murder rejected by the
Superior and Appeal Courts. If that applicant faces trial despite the
assurance given in his case, he will be exposed to the "death row
phenomenon", whether or not the assurance is ultimately acted upon by
the State Governor. The assurance given in the Kirkwood case, if
ineffective to prevent a trial in which the death sentence is sought,
can only operate, if at all, after the State and Federal appeals have
been made and rejected.
COMPLAINTS
Article 3
The applicant complains that if he is surrendered to the
United States, 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. In support of the
applicant's complaint he quotes:
"The Commission has recognised in its previous case law that a
person's extradition may, exceptionally, give rise to issues under
Article 3 of the Convention where extradition is contemplated to a
country in which due to the very nature of the regime in that country,
or to a particular situation in that country (emphasis added)
basic human rights, such as are guaranteed by the Convention, might be
either grossly violated or entirely suppressed" (No. 1802/62,
Dec. 26.3.63, Yearbook 6 p. 462 at p.480; Application No. 10308/83,
Altun v. Federal Republic of Germany, Dec. 3.5.83, D.R. 36 p 209).
"According to the Commission case law concerning cases of
extradition under Article 3 of the Convention, the only factor which
is relevant is the existence of an objective danger for the person
extradited" (No. 10479/83, Dec. 12.3.84, D.R. 37 p. 183).
In Kirkwood, the Government of the United States of
America sought the extradition from the United Kingdom of an American
citizen charged with two murders and attempted murder. The State
within the United States which sought to try him was the State of
California, where the death penalty applied, but where it had not been
carried out since 1967. At the request of the Government of the
United Kingdom the Attorney General of California gave what purported
to be an assurance under Article IV of the Anglo-United States
Extradition Treaty that representations of the United Kingdom
Government that he should not be executed would be placed before the
Governor of California. Kirkwood applied to the Commission against
his extradition on the ground that the assurance was valueless, and
argued that his extradition would constitute a breach of inter alia
Article 3 of the Convention in view of the inordinate delays in
carrying out the death penalty in California.
After receiving observations of the United Kingdom Government
and further observations of Kirkwood, the Commission ruled his
complaint inadmissible on the grounds:
(1) that it had not been established that the treatment to
which he would be exposed and the risk of his exposure to
it was so serious as to constitute inhuman or degrading
treatment or punishment contrary to Article 3 of the
Convention (loc. cit. p. 188), and
(2) there was nothing to show that the conditions of
detention of "death row" prisoners were so severe as to
constitute a gravely aggravating aspect in assessing the
seriousness of his complaints (loc. cit. p. 190).
In coming to its decision as to his exposure to Article 3
treatment and punishment, the Commission noted that:
(1) the assurance obtained had not removed the risk of
Kirkwood being subjected to the "death row phenomenon" (loc.
cit. p. 188)
(2) the probability that if convicted he would be exposed to
the "death row phenomenon" was high (loc. cit. p. 185).
It decided that it did not attain the degree of seriousness
envisaged by Article 3, because
(1) of the complex and detailed measures to accelerate the
appeals in capital cases in California, particularly the
priority assigned to them as to counsel and the formal time
limit imposed by the Supreme Court (loc. cit. p. 188)
(2) of the momentous significance of the appeals on the
applicant (loc. cit. p. 188)
(3) the "death row phenomenon" was an arguable basis for
alleging cruel or unusual punishment in the United States,
particularly California (People v. Anderson, 493 P 2d
880). Although the argument had not yet been successful in
putting an end to the "death row phenomenon", the Commission
expressed its confidence in the rapid developments of which
the common law was capable and held that the worsening of
the "death row phenomenon" would give better grounds for such
an argument (loc. cit. p. 189) in the United States' courts.
The Commission said its task was to examine the machinery of
justice to which Kirkwood would be subjected and to establish whether
there were any aggravating factors which might indicate arbitrariness
or unreasonableness in its operation. It concluded that capital cases
in California were dealt with so as to ensure compliance with the
provisions against arbitrariness laid down in the Californian and
United States' Constitutions.
It is submitted that the applicant's case is to be
distinguished from the Kirkwood case:
(1) because of the entirely different circumstances existing
in Florida, as opposed to California, as disclosed by the
documents submitted in support of the application, in
particular the number of "death row" detainees, the severe
conditions of their detention, the number of consequential
appeals in capital cases, the consequential delays in those
proceedings and the preparedness of the authorities
nevertheless to execute appellants after the failure of
their appeals, years after their trials,
(2) because the evidence indicates clearly that, whatever the
machinery of justice pertaining in Florida and the United
States generally, the existing situation to which the applicant
will be exposed in Florida, indicates that he will suffer the
"death row phenomenon", and
(3) because the Supreme Court of the United States is ineffective
to prevent it.
Alternatively, the Commission should independently determine
that the question is one which should be admitted in order that it
can be given full and proper consideration by the Court. It is
further submitted that the evidence indicates that the situation in
the United States, far from improving, as the Commission suggested it
might, in the Kirkwood case, has been aggravated.
It is submitted, on the basis of voluminous and substantial
evidence, that if the applicant is surrendered to the United States,
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 Florida, together with the
aggravating circumstances arising from the conditions of
imprisonment.
The applicant contends that the system of capital punishment
as operated in Florida is arbitrary and discriminatory. The
development of the case-law in this area has reduced the protection of
the accused and exacerbated the psychological pressure on "death row"
detainees.
Following its decision in Lockhart v. McCrea (No. 84-18 65)
the Supreme Court of the United States has permitted the exclusion of
committed opponents of the death penalty from juries in capital cases.
The risk of a conviction and death sentence is thereby arbitrarily
increased.
Evidence submitted by the applicant tends to show that juries
are arbitrarily predisposed to sentence to death persons who kill
white, rather than black, people. Arbitrary factors including the
geographical location of the murder, as well as the victim's race and
that of the accused, appear to influence juries. In addition, in
Florida the trial judge may overrule a jury's sentence of life
imprisonment and impose the death penalty; this has occurred
ninety-three times.
The severity of the "death row" conditions themselves is acute
and made worse by the duration of the proceedings. Those executed
between 1977 and 1984 spent an average of 6 years on "death row" between
sentence and execution. In one case, Sullivan, the period was ten
years.
The "death row" detainees occupy cells two metres by three,
which they leave only to shower three times per week for five minutes,
for exercise in a special yard for only 16 hours per month (twice two
hours per week), or for visits. Visits are limited, there is no
access to the prison library or educational facilities, prisoners
cannot work in the prison, their diet and medical treatment is poor
and their sole contact is with warders.
The nature of the execution and its implementation are also
referred to.
In Florida execution is by electrocution. Following the
signing of the Governor's execution warrant the condemned man is
transferred to a special cell, in close proximity to the execution
chamber. He is deprived of all his personal belongings and must ask a
warder for all his needs. He is kept under supervision at thirty
minute intervals; this interval is reduced to fifteen minutes during
the final week. During the final week before an execution the
electric chair is tested. The resultant power surge dims the lights
throughout the prison.
On the day of execution the applicant's hair is shaved on his
head and calf. Both are smeared with a current-conducting jelly prior
to the attachment of the electrodes. The condemned man's head is
covered after he has been strapped into the oak chair, known as
"Ol' Sparky", which has been used for executions in Florida since
electrocution was introduced. One shock of two thousand volts is not
invariably sufficient to kill; in the case of Spenkelink (1979) three
shocks had to be administered over a six minute period before death was
certified.
The applicant contends that because Florida has the largest
"death row" population of any State, but a tremendous backlog of death
penalty cases, "death row" inmates remain in the inhuman conditions
described above for an inordinate amount of time.
Article 13
According to the jurisdiction of the Commission, where an
individual has an arguable claim to be a victim of a violation of
the rights set forth in the Convention, he should have a remedy before
a national authority in order both to have his claim decided and, if
appropriate, to have redress (Eur. Court H.R., judgment of Silver and
Others of 25 March 1983, Series A no. 61 paras. 111-9 and Eur. Court
H.R., Klass and Others judgment of 6 September 1978, Series A no. 28).
In the Kirkwood case, after the Commission had withdrawn its
ruling under Rule 36 of the Rules of Procedure, and before the
Commission had given its decision as to the admissibility of his
application, the Secretary of State for Home Affairs ordered
Kirkwood's surrender to the United States under Section 12 of the
Extradition Act 1870, in spite of his petitioning against his
surrender on the same terms as his application to the Commission.
Kirkwood applied to the High Court for judicial review of the order on
the grounds that it was unreasonable to surrender him:
(1) during the pendency of the European proceedings, and
(2) in violation of the United Kingdom's obligations to the
European Convention of Human Rights.
Kirkwood also applied for a stay of the Secretary of State's
order and a writ of habeas corpus on the same grounds. His
applications were refused by the High Court, which also refused him
leave to appeal to the House of Lords. The House of Lords also
refused leave to appeal. These two judgments of the High Court are
binding on the present applicant.
The United Kingdom has not incorporated the Convention into
its domestic law, although the English courts may take it into account
as an aid to statutory construction: R v. Chief Immigration
Officer, ex parte Bajan Singh (1976) 1 QB 198, R v. Chief
Immigration Officer, ex parte Bibi (1976) 1 WLR 979. The High
Court in R v. Secretary of State for the Home Department, ex parte
Kirkwood (1984) 2 All E R 390, relying on R v. Secretary of
State, ex parte Fernandez (1981) Imm App R I, held that the
Secretary of State was under no obligation to observe the duties
imposed by Human Rights treaties.
It follows that the Secretary of State is not required to have
due regard to the Convention in exercising his discretion under
Section 11 of the Act, and there is every reason to believe that in a
case such as the applicant's, where the alternative to extradition is
to leave him free within the English community, the Secretary of State
would disregard it. The courts which examined the lawfulness of the
applicant's extradition could not examine the allegation that the
applicant's surrender would involve a violation of Article 3 of the
Convention.
It is submitted that in these circumstances the applicant
has no effective remedy as required by Article 13 for the breach of
Article 3 which he alleges.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 November 1986 and
registered on the same day. It was examined by the Rapporteur on the
same day and information was requested from the respondent Government
pursuant to Rule 40 (2)(a) of the Rules of Procedure concerning the
imminency of the surrender of the applicant to the authorities of the
United States of America.
The respondent Government replied on 28 November 1986. The
Commission examined the admissibility of the application on 9 December
1986 and decided, in accordance with Rule 42 (2)(b) of the Rules of
Procedure, to invite the respondent Government to submit written
observations on its admissibility and merits before 2 January 1987.
On 17 December 1986 the respondent Government requested an extension
for the submission of the observations which was granted by the
President of the Commission until 16 January 1987. Two further
extensions for the submission of the observations were sought by the
respondent Government, on 14 January 1987 and 29 January 1987, which
were required inter alia to enable information to be obtained from the
United States' authorities, both of which were granted, the latter
until 27 February 1987. The observations were submitted on 4 March
1987. The applicant was invited to submit observations in reply
before 27 March 1987. On 23 March 1987 the applicant's representative
requested an extension until 14 April 1987 in the time limit for the
submission of these observations to enable legal opinions to be sought
from the applicant's representatives in the United States. This
extension was granted by the President of the Commission on 26 March
1987 and the observations were submitted on 13 April 1987.
On 14 May 1987 the Commission resumed its examination of the
admissibility of the application and decided to invite the parties,
pursuant to Rule 42 (3)(b) of the Rules of Procedure, to make further
submissions on its admissibility and merits orally at a hearing.
The hearing was fixed for 13 July 1987. On 1 July 1987 the
applicant's representatives informed the Commission by telex that the
applicant wished to withdraw his application. The President of the
Commission decided on the same day to cancel the proposed hearing and
the parties were so informed.
FINDINGS OF THE COMMISSION
The applicant complained about his proposed extradition from
the United Kingdom to the United States of America and about the
alleged inadequacy of the remedies available under English law against
the decision to surrender him to the authorities of the United States
of America. However, it appears from the applicant's representatives'
telex of 1 July 1987 that the applicant, who has been and continues to
be independently advised throughout, wishes to withdraw his
application. The Commission finds that there are no reasons of a
general character affecting the observance of the Convention which
necessitate a further examination of the case.
For these reasons the Commission
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary President
to the Commission of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)