SOERING v. THE UNITED KINGDOM JUDGMENT
40
the challenge is in effect to the terms of a treaty between the United
Kingdom and the United States and also because the alleged violation of the
substantive provision is of an anticipatory nature.
The Court does not consider it necessary to rule specifically on these two
objections to applicability since it has come to the conclusion that in any
event the requirements of Article 13 (art. 13) were not violated.
118. The United Kingdom Government relied on the aggregate of
remedies provided by the Magistrates’ Court proceedings, an application for
habeas corpus and an application for judicial review (see paragraphs 21-23,
32-33 and 35 above).
119. The Court will commence its examination with judicial review
proceedings since they constitute the principal means for challenging a
decision to extradite once it has been taken.
Both the applicant and the Commission were of the opinion that the
scope of judicial review was too narrow to allow the courts to consider the
subject matter of the complaint which the applicant has made in the context
of Article 3 (art. 3). The applicant further contended that the courts’ lack of
jurisdiction to issue interim injunctions against the Crown was an additional
reason rendering judicial review an ineffective remedy.
120. Article 13 (art. 13) guarantees the availability of a remedy at
national level to enforce the substance of the Convention rights and
freedoms in whatever form they may happen to be secured in the domestic
legal order (see the above-mentioned Boyle and Rice judgment, Series A
no. 131, p. 23, § 52). The effect of Article 13 (art. 13) is thus to require the
provision of a domestic remedy allowing the competent "national authority"
both to deal with the substance of the relevant Convention complaint and to
grant appropriate relief (see, inter alia, the Silver and Others judgment of 25
March 1983, Series A no. 61, p. 42, § 113 (a)).
121. In judicial review proceedings the court may rule the exercise of
executive discretion unlawful on the ground that it is tainted with illegality,
irrationality or procedural impropriety (see paragraph 35 above). In an
extradition case the test of "irrationality", on the basis of the so-called
"Wednesbury principles", would be that no reasonable Secretary of State
could have made an order for surrender in the circumstances (ibid.).
According to the United Kingdom Government, a court would have
jurisdiction to quash a challenged decision to send a fugitive to a country
where it was established that there was a serious risk of inhuman or
degrading treatment, on the ground that in all the circumstances of the case
the decision was one that no reasonable Secretary of State could take.
Although the Convention is not considered to be part of United Kingdom
law (ibid.), the Court is satisfied that the English courts can review the
"reasonableness" of an extradition decision in the light of the kind of factors
relied on by Mr Soering before the Convention institutions in the context of
Article 3 (art. 3).