Landmarks: Soering's Legacy
Amsterdam Law Forum, Vol.1, No. 1, 2008
12 Pages Posted: 22 Sep 2009
Date Written: September 26, 2008
The story of Soering (1989) seemed an unlikely candidate for the seminal case of the Strasbourg Court on refoulement. For two decades, the European Commission of Human Rights (a monitoring body whose decisions could be submitted for review to the Court) had held that Article 3 ECHR prohibits refoulement, i.e. expulsion if there is a real risk that the expellee will suffer illtreatment in the country of origin. Many of those cases were lodged by failed asylum seekers which might raise general sympathy more easily than Soering’s case - a brutal murderer.
Young students at the University of Virginia, Jens Soering and Elizabeth Hayes fell in love in 1985. But Hayes’ parents vehemently opposed the relationship and in an escalated row in March 1986 with the young couple, they were stabbed to death with a knife. Jens Soering and Elizabeth Hayes fled to the United Kingdom, where Soering killed two metropolitan policemen. Upon arrest of the couple in 1987, the United States requested extradition of Soering and Hayes. The UK was willing to oblige. Elizabeth Hayes was surrendered, trialed, and sentenced to two times 45 years of imprisonment. The UK would happily have extradited Soering too, but he invoked Article 3 ECHR.
Soering feared that in Virginia, he would be sentenced to death. The circumstances surrounding the trial, in particular the expected sojourn on “death row” where he would have to wait for the execution possibly for years, would necessarily cause much suffering and anguish. The Court accepted that this would constitute inhuman or degrading treatment as meant in Article 3. It also accepted that this consequence of the extradition could be ascribed to the United Kingdom. Hence, it adopted the Soering doctrine:
“the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3 […] where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country”.
After the ruling, the United Kingdom got assurances from the United States that the death sentence would not be imposed. And upon extradition in 1990, Jens Soering was convicted to two life sentences. So in the end, all parties got what they wanted: Soering protection from death row, the UK the extradition and Virginia the trial. Maybe Soering was not such an unlikely candidate for the first judgment on refoulement, after all.
The importance of the ruling in Soering for migration law in Europe is uncontestable. It has become generally accepted that in case of a real risk of inhuman treatment in the country of origin, Article 3 ECHR forbids expulsion. This holds true not only for extradition of alleged criminals like Soering, but also for expulsion of people seeking asylum in Europe. Recently, the EU Qualification Directive codified the prohibition of refoulement in a definition of persons eligible for asylum. As the first judgment wherein the Court adopted (or confirmed) this prohibition of refoulement coined by the European Commission on Human Rights, Soering merits a place in any historical overview on migration law in Europe.
But the judgment provokes more than mere historical interest. It merits re-examination because in no later case, the Court elaborated in such detail why Article 3 ECHR applies to expulsion cases. Analysis of its reasoning furthermore reveals an approach to interpretation that, implicitly or explicitly, has extended and limited scope and content of asylum protection under the European Convention ever since.
Keywords: Hemme Battjes, Soering's legacy, inclusion, exclusion, western immigration
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