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Après Soering: The Relationship between Extradition and Human Rights in the Legal Practice of Germany, the Netherlands and the United States

Published online by Cambridge University Press:  21 May 2009

Harmen G. van der Wilt
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Extract

On 7 July 1989 the European Court of Human Rights reached a landmark decision in the case of Jens Soering. In the case of a pending extradition, the requested State, a party to the European Convention on Human Rights, violated Article 3 of the Convention if the fugitive, after surrender, faced the real risk of being subjected to ‘inhuman or degrading treatment or punishment’.

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Articles
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Netherlands International Law Review , Volume 42 , Issue 1 , May 1995 , pp. 53 - 80
Copyright
Copyright © T.M.C. Asser Press 1995

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References

1. Soering case ECHR Ser. A, No. 161, Judgment of 7 July 1989.

2. See for instance Breitenmoser, S. and Wilms, G.E., ‘Human Rights vs. Extradition: The Soering Case’, 11 Michigan JIL(1990)p. 845;Google ScholarLagodny, O., ‘Anmerkung Fall Soering’, NJW (1990) p. 2183;Google ScholarLillich, R.B., ‘The Soering Case’, Notes and Comments, 85 AJIL (1991) p. 128;Google ScholarVermeulen, B.P., ‘Uitlevering, doodstraf en artikel 3 EVRM (II)’, NJCM-Bulletin (1989) p. 846;Google Scholarvan den Wyngaert, Chr., ‘Applying the European Convention on Human Rights to Extradition: Opening Pandora's Box?’, 39 ICLQ (1990) p. 757.Google Scholar

3. Soering case, supra para. 111.

4. Soering case, para. 91.

In a recent case the Human Rights Committee displayed a similar opinion by holding Canada responsible for a breach of Art. 7 of the International Covenant on Civil and Political Rights, prohibiting cruel, inhuman or degrading punishment, because of extraditing a person to California where he might be executed by gas asphyxiation. Ng v. Canada, 7 January 1994, CCPR/C/49/D/ 469/1991.

5. Soering case, supra n. 1, para. 90.

6. Soering case, supra n. 1, para. 91.

7. It should be noted that both the International Law Association (ILA) and the Association International de Droit Pénal (AIDP) have devoted special attention to the issue of extradition and human rights during their latest conferences. The ILA Conference was held in Buenos Aires from 14–20 August 1994 while the AIDP Conference was held in Rio de Janeiro from 4–10 September 1994. The results of the deliberations and the recommendations have as yet not been published.

8. Compare for instance Lagodny, O., Die Rechtsstellung des Auszuliefernden in der Bundesrepublik Deutschland (1987)Google Scholar and Van den Wyngaert, loc. cit. n. 2, p. 757.

9. Van den Wyngaert, loc. cit. n. 2, p. 764.

10. Although the United States has a monist system, for several reasons human rights conventions play only a minor role in the United States' legal practice. First, the United States is a party to but a few human rights instruments. Second, human rights conventions are not considered as ‘self-executing’, as was established (amongst other things) in the (in)famous Sei Fujii v. US case, Cal. Supreme Court, 242 P.2d 617 (Cal. 1952).

11. Soering case, supra n. 1, para. 113.

12. Swart, A.H.J., Nederlands Uitleveringsrecht (1986) pp. 69–70.Google Scholar

13. Lagodny, op. cit. n. 8, p. 59.

14. OLG München, 17 May 1984, published in: Eser, A., Lagodny, O. and Wilkitzki, P., Internationale Rechtshilfe in Strafsachen, Rechtsprechungssamlung 1949–1992 (1993)Google Scholar No. 87.

15. Lagodny, op. cit. n. 8, pp. 303–305.

16. Interpretation of the ‘Transformationsgesetz’ in harmony with the Constitution, the other option of Art. 101, is out of the question, as extradition treaties normally do not contain ‘ordre public’ clauses, compare Lagodny, op. cit. n. 8, p. 304 .

17. BVerfGe 59, 280, (283); BVerfGe 63, 332, (338); BVerfGe 75, 1, (19).

18. BVerfGe 75, (19).

19. Vogler, Th., Auslieferungsrecht und Grundgesetz (1970) pp. 221–223.Google Scholar

20. BVerfGe 75, (20).

21. Lagodny, op. cit. n. 8, p. 158 proposes that Germany should persuade the requesting State to withdraw its request whenever the extradition would be in contravention of fundamental rights.

22. BVerfGe 21 May 1987, NJW 1988, p. 1463.

23. BGHSt. 32, 314.

24. BGHSt. 32, 315.

25. BGHSt. 32, 319.

26. OLG München, 17 May 1984, E/L/W 87, p. 327.

27. BVerfGe 74, (370).

28. BVerfGe 22 June 1992, E/L/W 201, p. 691.

29. BVerfGe 22 June 1992, E/L/W, p. 695.

30. Supra, n. 25, at 696.

31. Compare Lagodny, op. cit. n. 8, p. 174, who refers to Vogler, Th., Auslieferungsrechtund Grundgesetz (1970)p. 199Google Scholar and Stein, T., ‘Auslieferung und Wehrdienstverweigerung’, NJW (1978) p. 2428.Google Scholar

BVerfGe 18, 112, (117).

32. BVerfGe 60, 348, (358).

33. Lagodny, op. cit. n. 8, p. 179.

34. Explicitly: BVerfGe 75, 1, (16). Before: BVerfGe59,280, (283); BVerfGe63, 332, (338).

35. BVerfGe 75, 1, (17).

36. Compare BVerfGe 63, 332, (338); BVerfGe 24 January 1991, NStZ (1991) p. 295.

37. Compare: Schomburg, W. and Lagodny, O., ‘Neuere Entwicklungen der internationalen Rechtshilfe in Strafsachen’, NStZ (1992) p. 355.Google Scholar

38. The tautological drafting of Art. 93—‘Provisions of treaties and of resolutions by international institutions, which may be binding on all persons by virtue of their contents shall become binding after they have been published’—is unfortunate, but the reference to the content of the standards clarifies the intent of the legislator. The hierarchal supremacy of treaty provisions above national law—even the Constitution!—is established in Art. 94 of the Constitution.

39. Constitution, Art. 2(3); Extradition Statute, Art. 2.

40. Thus, for instance, the optional clause of Art. 6 of the European Convention on Extradition which authorizes the contracting parties to refuse the extradition of nationals is transformed into an injunction to extradite Dutch nationals, unless it is guaranteed that they may serve their sentence in the Netherlands, compare Art. 4 Dutch Extradition Statute.

41. Swart, op. cit. n. 12, pp. 334–335 and p. 369.

42. Swart, op. cit. n. 12, p. 87.

43. HR 11 September 1979, NJ 1979, 637; HR 15 February 1977, NJ 1977, 619; HR 8 November 1977, NJ 1978, 35.

44. HR 1 July 1982, NJ 1983, 62.

45. Remmelink, J., Uitlevering, 3rd edn. (1985) p.105.Google Scholar

46. HR 12 April 1983, NJ 1983, 670; HR 6 December 1983, NJ 1984, 492.

47. Compare especially HR 1 July 1985, NJ 1986, 162.

48. Swart in his annotation to HR 1 July 1985, 35 Ars Aequi (1986) no. 2, p. 138.

49. Compare HR 1 July 1985, 35 AA (1986) no. 2, p. 134 and Vermeulen, B.P., ‘Uitlevering, soms een kwestie van vertrouwen’, 20 DD (1990) p. 327.Google Scholar

50. Compare for instance HR 28 May 1985, NJ 1985, 892; HR 1 July 1986, NJ 1987, 256 and HR 2 December 1986/ 17 February 1987, NJ 1987, 516.

51. Vermeulen, loc. cit. n. 49, p. 327; Keijzer, N., ‘Verweren tegenuitlevering’, in De derde rechtsgang nader bekeken (1989) p. 194.Google Scholar

52. HR 27 March 1984, NJ 1984, 611.

53. The decision has aroused a lot of criticism, compare Swart, op. cit. n. 12, p. 89 who acknowledges its practical logic, but points out the theoretical shortcomings. Much harsher in his judgment is Strijards, G.A.M., ‘Opvallendeevolutiesinhetuitleveringsrecht’, 15 DD (1985) p. 103Google Scholar who accuses the Supreme Court of trespassing on the domain of the executive and thus breaching the doctrine of separation of powers.

54. HR 1 July and 21 October 1986, NJ 1987, 255–258.

55. HR 13 January 1987, NJ 1987, 835.

56. HR 13 June 1989, NJ 1990, 84; HR 9 April 1991, NJ 1991, 696; HR 8 July 1992, NJ 1993, 15.

57. Compare HR 28 May 1985, NJ 1985, 892 (implicitly). Explicitly: HR 29 May 1990, NJ 1991, 467; HR 9 April 1991, NJ 1991, 696 and HR 3 May 1994, No. U 97.524.

58. Compare Consideration No. 6.3.12 in HR 9 April 1991, NJ 1991, 696.

59. Compare the convincing pleadings of the defendance in: HR 28 May 1985, NJ 1985, 892, pp. 2924–2925.

60. Compare for instance the reasoning of the District Court of The Hague in Consideration No. 6.3.8 in: HR 9 April 1991, NJ 1991, 696.

61. Compare HR 9 April 1991, NJ 1991, 696.

62. Buruma, Y., ‘Bezwaar tegen voorgenomen uitlevering’, annotation to the District Court of The Hague's decision of 19 September 1990, in 16(2) NJCM-Bulletin (1991) p. 125;Google Scholarvan Dijk, S.M.J. and Mos-Verstraten, A.E., ‘Uitlevering en het EVRM: een kwestie van verplichtingen’, 4 NJB (03 1993) pp. 310–311.Google Scholar

63. HR 30 March 1990, NJ 1991, 249.

64. Cherif Bassiouni, M., International Extradition: United States Law and Practice (1983)Google Scholar Ch. 2, section 1.

65. The very limited significance of international (human rights) law as a source of protection for the individual has been corroborated in the recent case of US v. Alvarez-Machain, 112 S.Ct. 2188 (1992) which concerned the forceable abduction of a fugitive from Mexican territory by US governmental officials. After a careful examination of the case, Blakesley concludes that: ‘the approach taken by the United States Supreme Court and its vision of the role of customary international law, let alone self-executing treaty law, seems clearly to indicate that it does not believe that a returned fugitive has standing to raise protections or interests pursuant to human rights treaties and custom’.

Blakesley, C., ‘The Protection of Human Rights in International Cooperation in Criminal Proceedings’, State Report of the United States, 65 Int. Rev. Penal L (1994) p. 513.Google Scholar

66. Plaster v. US 720 F.2d 340, 348 (USCA 4th Cir. 1983).

67. Neely v. Henkel, 180 US 109, 122 (1901).

68. Anderson distinguishes three types of unfair treatment: ‘Requested persons have claimed the trial in the requested state will be or was unfair (for instance Gallina v. Fraser), that the awaiting punishment will be excessive or cruel (for instance Escobedov. United States), and finally that the requesting country will be unable or does not intend to protect the requested person from assassination attempts (for instance Sindona v. Grant)’. These cases will be discussed in further detail below. Anderson, L., ‘Protecting the Rights of the Requested Person in Extradition Proceedings: An Argument for a Humanitarian Exception’, Transnational Aspects of Criminal Procedure, Michigan YB Int. Legal Studies (1983) p. 154.Google Scholar

69. Anderson, loc. cit. n. 68, p. 153.

70. That the ‘rule of non-inquiry’ only applied to the judiciary and did not affect the executive discretion to deny a person's extradition to the requesting State in view of reprehensible policies and practices displayed by that State, was explicitly stated in the case of Peroffv. Hylton, 563 F. 2d 1099 (4th Cir. 1977). Compare also Bassiouni, op. cit. n. 64, ch. 7, section 7.

71. Gallina v. Fraser, 278 F.2d 77 (2d Cir.), 364 US 851 (1960). Anderson has elaborated on the outcome of the case: ‘(the court) did not find Gallina's trial in absentia to be antipathetic to its sense of decency because of the possibility that the State Department would condition extradition upon Italy's promise of a new trial … The State Department in fact did request a new trial upon extradition of Gallina’. Anderson, loc. cit. n. 68, pp. 155–156.

72. Matter of the extradition of Singh, 123 F.R.D. 127 (DNJ 1987) and Sindona v. Grant, 619 F. 2d 167 (2d Cir. 1980) p. 175.

73. Compare D.K. Piragoff and M.V.J.Kran, ‘Extradition from Canada and the United States’, in Eser, A. and Lagodny, O., Principles and Procedures for or a New Transnational Criminal Law (1992) p. 593.Google Scholar

74. In re Sindona, 450 F.Supp. 695 (SDNY 1978).

75. Matter of Burt, 737 F. 2d 1484 (7th Cir. 1984).

76. Matter of Burt, 737 F.2d (7th Cir. 1984) p. 1487.

77. Supra n. 58, at 1486.

78. Piragoff and Kran, loc. cit. n. 73, p. 598.

79. 442 F.2d 1005 (5th Cir. 1971).

80. Escobedo v. United States, 623 F.2d (5th Cir. 1980) p. 1107.

81. In this particular case the Agreement between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, June 19, 1951, was at stake. Germany had requested the surrender of US servicemen in order that they should serve their sentences, after being convicted by a West German court of rape and related offences. According to Anderson, loc. cit. n. 68, p. 167, ‘the servicemen argued that they were not granted a speedy trial, that they were denied the counsel of their choice, that their German lawyer provided ineffective counsel because of language difficulties, that they were denied the right to confront their accuser and another witness, and finally that they were not provided with a verbatim transcript needed to bring an appeal’.

82. Anderson, loc. cit. n. 68, p. 158 adds that the holding was based on some practical considerations as well: ‘the court noted that all the elements of the crime had been committed in Germany and alluded to the difficulty and impropriety of a US court's reviewing German judicial procedure’.

83. Anderson, loc. cit. n. 68, p. 160.

84. Anderson, loc. cit. n. 68, pp. 162–164.

85. Piragoff and Kran, loc. cit. n. 73, p. 599: Rosado v. Civiletti, 621 F.2d (2d Cir. 1980).

86. Rosado v. Civiletti, 621 F. 2d (2d Cir. 1980) p. 1198.

87. It should be acknowledged that Bassiouni, op. cit. n. 64, Ch. 7, sections 7–5 gives a different interpretation of the Rosado case. Actually, he downplays the significance of the verdict by emphasizing that the court, after having vented its indignation over the asserted abuses inMexico, finally reiterated the rule of non-inquiry by holding that: ‘a United States court could not inquire into the internal practices of a sovereign country’.

88. In his interesting contribution to the AJIL's special issue on the bicentenary of the Constitution, Charney addresses the question of judicial deference in foreign relations in more global terms. He argues that the Constitution is inconclusive with regard to judicial deference and that the judiciary's reluctance in this field is rather based on pragmatic considerations. After having demonstrated the ambiguity of these considerations, Charney strongly supports the preservation of the rule of law, adding that ‘the role of the courts (in upholding the rule of law) is no less important when they are presented with matters touching on international affairs’.

Charney, J.I., ‘Judicial Deference in Foreign Relations’, 83 AJIL (1989) p. 813.Google Scholar

89. Compare—with some reservations—Swart, op. cit. n. 12, p. 86 and Kälin, W., Das Prinzip des non-refoulement (1982) p. 166.Google Scholar

90. Lagodny, op. cit. n. 8, p. 105; Van den Wijngaert, p. 762.

91. Swart, op. cit. n. 12, p. 93

92. Interestingly enough, the ILA's Committee on extradition and human rights has dedicated a special recommendation to this issue which is unequivocal in its purport: ‘The fact that there may be remedies in the law of the requesting state or at the international law level does not relieve the requested state of its obligation to satisfy itself that human rights will be respected if the requested person is extradited, (Rec. 7).

The AIDP, while urging the abolishment of the ‘rule of non-inquiry’ in one of its resolutions, has declined to express such a daring point of view.

93. Swart, op. cit. n. 12, p. 89. Contra Stefan Trechsel who, basing himself on European case law, argues that: ‘whenever a State extradites a person to another State where that person enjoys the same degree of protection by the Convention organs, the requested State does not have to bother about a possible violation of the Convention rights in the requesting State’. S. Trechsel, ‘International Organs Controlling Human Rights’, in Eser, A. and Lagodny, O., eds., Principles and Procedures for a New Transnational Criminal Law (1992) pp. 640–641.Google Scholar

94. Anderson, loc. cit. n. 68, p. 164.

As regards the bias of the executive to please the requesting State, compare also Wise who argues that: ‘Such questions of justice are even less suitable for consideration by executive departments, which are commonly influenced by a fear of offending some fairly despicable regimes’. Wise, E., ‘Some Problems of Extradition’, 15 Wayne LR (1969) pp. 722–723.Google Scholar

95. ‘In 1934 Austria extradited to Italy a smuggler accused of killing two customs officers, attaching the condition that he not be subjected to the death penalty. The Italian criminal court refused to honor the promise of the executive branch, because:

“No limitation upon the application of the rule of law, even if derived from international relationships, can be taken into consideration by the judge unless it has been transmitted into a rule of municipal law”.'

Anderson, loc. cit. n. 68, p. 163.

96. Compare van Hattum, W.F., ‘Uitlevering, een kwestie van vertrouwen?’, 19 DD (1989) p. 940Google Scholar who quite rightly emphasizes this aspect.

97. A natural option would be to persuade the requesting State to withdraw its request, in exchange for the offer to take over criminal proceedings or the execution of a criminal judgment. I will return to this possibility in the last section of this article.

98. Compare Art. 1 (A) of the Geneva Convention relating to the Status of Refugees (1951).

99. Van den Wyngaert, loc. cit. n. 2, p. 771; Anderson, loc. cit. n. 68, p. 154. In a case concerning the transfer of the enforcement of (foreign) criminal judgments the European Court of Human Rights reaffirmed its strict opinion as to the applicability of Art. 6 ECHR in the field of international cooperation in criminal affairs: ‘Contracting States are (only then) obliged to refuse their co-operation (to the enforcement of foreign judgments) if it emerges that the conviction is the result of a flagrant denial of justice’.

Case of Drozd and Janousek, ECHR Ser. A, No. 240, Judgment of 26 June 1992, section 110.

100. Anderson, loc. cit. n. 68, p. 166 highlights the problem where he states that: ‘A humanitarian exception would present special problems of admissibility of evidence and standards of proof, as the requested person making a claim to it would frequently be seeking to demonstrate that systematic unfair treatment of others suggests that he would likewise be treated unfairly’.

101. The ILA briefly refers to the issue suggesting that reports of human rights NGOs would be of considerable value in such an inquiry. ILA, , First Report of the Committee on Extradition & Human Rights (05 1994) p. 13.Google Scholar

102. Compare the defence pleadings in: HR 9 April, NJ 1991, 696 where it is argued that interlocutory proceedings do not automatically suspend the extradition. Contra the Attorney-General who refers to the possibility of obtaining an injunction until judgment has been passed at the highest level.

103. Art. 11 of the European Convention on the Transfer of Proceedings in Criminal Matters (1972), for instance, provides for two exceptions to the general obligation to accept the transfer of proceedings:

(i) if proceedings would be contrary to the international undertakings of the requested State;

(j) if proceedings would be contrary to the fundamental principles of the legal system of the requested State.

As regards the provisions in the treaties facilitating the transfer of execution of criminal judgments, compare Paridaens, D.J.M.W., De overdracht van de tenuitvoerlegging van strafvonnissen (1994) pp. 224–225.Google Scholar