27
SOERING v. THE UNITED KINGDOM JUDGMENT
the 1966 International Covenant on Civil and Political Rights and the 1969
American Convention on Human Rights and is generally recognised as an
internationally accepted standard.
The question remains whether the extradition of a fugitive to another
State where he would be subjected or be likely to be subjected to torture or
to inhuman or degrading treatment or punishment would itself engage the
responsibility of a Contracting State under Article 3 (art. 3). That the
abhorrence of torture has such implications is recognised in Article 3 of the
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, which provides that "no State Party
shall ... extradite a person where there are substantial grounds for believing
that he would be in danger of being subjected to torture". The fact that a
specialised treaty should spell out in detail a specific obligation attaching to
the prohibition of torture does not mean that an essentially similar
obligation is not already inherent in the general terms of Article 3 (art. 3) of
the European Convention. It would hardly be compatible with the
underlying values of the Convention, that "common heritage of political
traditions, ideals, freedom and the rule of law" to which the Preamble refers,
were a Contracting State knowingly to surrender a fugitive to another State
where there were substantial grounds for believing that he would be in
danger of being subjected to torture, however heinous the crime allegedly
committed. Extradition in such circumstances, while not explicitly referred
to in the brief and general wording of Article 3 (art. 3), would plainly be
contrary to the spirit and intendment of the Article, and in the Court’s view
this inherent obligation not to extradite also extends to cases in which the
fugitive would be faced in the receiving State by a real risk of exposure to
inhuman or degrading treatment or punishment proscribed by that Article
(art. 3).
89. What amounts to "inhuman or degrading treatment or punishment"
depends on all the circumstances of the case (see paragraph 100 below).
Furthermore, inherent in the whole of the Convention is a search for a fair
balance between the demands of the general interest of the community and
the requirements of the protection of the individual’s fundamental rights. As
movement about the world becomes easier and crime takes on a larger
international dimension, it is increasingly in the interest of all nations that
suspected offenders who flee abroad should be brought to justice.
Conversely, the establishment of safe havens for fugitives would not only
result in danger for the State obliged to harbour the protected person but
also tend to undermine the foundations of extradition. These considerations
must also be included among the factors to be taken into account in the
interpretation and application of the notions of inhuman and degrading
treatment or punishment in extradition cases.
90. It is not normally for the Convention institutions to pronounce on
the existence or otherwise of potential violations of the Convention.