29 SOERING v. THE UNITED KINGDOM JUDGMENT 1. Whether the applicant runs a real risk of a death sentence and hence of exposure to the "death row phenomenon" 93. The United Kingdom Government, contrary to the Government of the Federal Republic of Germany, the Commission and the applicant, did not accept that the risk of a death sentence attains a sufficient level of likelihood to bring Article 3 (art. 3) into play. Their reasons were fourfold. Firstly, as illustrated by his interview with the German prosecutor where he appeared to deny any intention to kill (see paragraph 16 above), the applicant has not acknowledged his guilt of capital murder as such. Secondly, only a prima facie case has so far been made out against him. In particular, in the United Kingdom Government’s view the psychiatric evidence (see paragraph 21 above) is equivocal as to whether Mr Soering was suffering from a disease of the mind sufficient to amount to a defence of insanity under Virginia law (as to which, see paragraph 50 above). Thirdly, even if Mr Soering is convicted of capital murder, it cannot be assumed that in the general exercise of their discretion the jury will recommend, the judge will confirm and the Supreme Court of Virginia will uphold the imposition of the death penalty (see paragraphs 42-47 and 52 above). The United Kingdom Government referred to the presence of important mitigating factors, such as the applicant’s age and mental condition at the time of commission of the offence and his lack of previous criminal activity, which would have to be taken into account by the jury and then by the judge in the separate sentencing proceedings (see paragraphs 4447 and 51 above). Fourthly, the assurance received from the United States must at the very least significantly reduce the risk of a capital sentence either being imposed or carried out (see paragraphs 20, 37 and 69 above). At the public hearing the Attorney General nevertheless made clear his Government’s understanding that if Mr Soering were extradited to the United States there was "some risk", which was "more than merely negligible", that the death penalty would be imposed. 94. As the applicant himself pointed out, he has made to American and British police officers and to two psychiatrists admissions of his participation in the killings of the Haysom parents, although he appeared to retract those admissions somewhat when questioned by the German prosecutor (see paragraphs 13, 16 and 21 above). It is not for the European Court to usurp the function of the Virginia courts by ruling that a defence of insanity would or would not be available on the psychiatric evidence as it stands. The United Kingdom Government are justified in their assertion that no assumption can be made that Mr Soering would certainly or even probably be convicted of capital murder as charged (see paragraphs 13 in fine and 40 above). Nevertheless, as the Attorney General conceded on their behalf at the public hearing, there is "a significant risk" that the applicant would be so convicted.