CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 juillet 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY   Application No. 12553/86 by N.E. against the United Kingdom             The European Commission of Human Rights sitting in private on 7 July 1987, the following members being present:                       MM. C.A. NØRGAARD, President                         G. SPERDUTI                         J.A. FROWEIN                         E. BUSUTTIL                         G. JÖRUNDSSON                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         H. VANDENBERGHE                    Mrs   G.H. THUNE                    Sir   Basil HALL                    MM.   F. MARTINEZ                      Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 24 November 1986 by N.E. against the United Kingdom and registered on 24 November 1986 under file No. 12553/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having regard to:           - The Rapporteur's decision of 24 November 1986 to bring the           application to the notice of the respondent Government and           to request information pursuant to Rule 40 (2)(a) of the           Rules of Procedure concerning the imminency of the surrender           of the applicant to the authorities of the United States           of America;           - The respondent Government's reply dated 28 November 1986;           - The Commission's decision of 9 December 1986 to invite the           respondent Government pursuant to Rule 42 (2)(b) of the           Rules of Procedure to submit written observations on the           admissibility and merits of the application;           - The observations submitted by the respondent Government on           4 March 1987 and the observations in reply submitted by the           applicant on 13 April 1987;           - The Commission's decision of 14 May 1987 to invite the           parties to make further submissions at a hearing pursuant to           Rule 42 (3)(b) of the Rules of Procedure to be held on           13 July 1987;           - The applicant's representatives' telex of 1 July 1987           informing the Commission of his wish to withdraw the           application;           - The President of the Commission's decision of 1 July 1987 to           cancel the proposed hearing;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case as submitted by the applicant may be summarised as follows:           The applicant, allegedly a United States national born in 1957, is represented before the Commission by Mr.   Colin Nicholls, Q.C. and Mr.   David Spens of counsel, instructed by Messrs.   Trevor Hamlyn, solicitors of London.           On 6 April 1981, in the District Court for the Southern District of Florida, the applicant was convicted of possessing marijuana with intent to distribute.   On 21 May 1981, he was sentenced to five years' imprisonment.   He appealed against his conviction.   On 29 October 1982, his appeal was dismissed.   He then being on bail was called upon to surrender to serve his sentence.           In 1985 he was indicted by a grand jury at the same court for various offences arising out of smuggling marijuana into Florida and distributing it, for three offences of kidnapping and three of murder. A warrant was issued for his arrest.   He avoided arrest.   On 5 September 1985, at Heathrow Airport, the applicant was arrested by officers of the Metroplitan Police for possessing two flick knives, an offence contrary to Section 1 of the Prevention of Crime Act 1953, carrying a maximum penalty of two years imprisonment.           On 13 September 1985, a warrant for his arrest was issued under the provisions of Section 8 of the Extradition Act 1870, ("the Act") for one of the murders above mentioned.   He was kept in custody. The Government of the United States of America requested his extradition under the terms of the Extradition Treaty between the United States and the United Kingdom of 1972, incorporated in the United States of America (Extradition) Order 1976 (S.I. 19176 No. 2144).           On 14 November 1985, the Secretary of State for Home Affairs issued two orders under Section 8 of the Act, one referring to the offence for which the applicant was convicted and one for the offences for which he was wanted for trial in the United States, requesting a Magistrate at Bow Street to proceed in conformity with the provisions of the Extradition Acts 1870-1936 ("the Extradition Acts").           On 13 March 1986, at the Bow Street Magistrates' Court, committal proceedings took place before the Chief Metropolitan Magistrate.   The evidence produced by the Government of the United States discloses that between 1979 and 1983 the applicant was active in a drug smuggling organisation run by a man named R.T.   R.T. was a United States' citizen who owned and lived near a yacht centre in Fort Lauderdale, Florida.   His yachts went from the centre to seas round the Bahama Islands where they were loaded with marijuana from waiting freighters.   The drugs were taken to the centre and distributed in the United States.           The applicant provided security services for the organisation. According to the evidence, R.T. fell out with three members of the organisation and employed the applicant and others to kidnap and murder them.   The first victims were two men, R.V. and T.H.    In July 1980, the applicant, a certain D. and another man, kidnapped them and tied them up overnight in one of R.T.'s yachts.   The following day they took them seven miles out to sea in another of R.T.'s yachts, where the applicant shot R.V. and D. shot T.H.   Their weighted bodies were then pushed overboard.   They were not seen again.           The third victim was J.S.   Early in 1982 the applicant with another kidnapped him and kept him at the centre overnight.   The following day R.T. and the other man took J.S. out in one of R.T.'s boats, shot him and pushed him overboard.   The applicant did not go on the trip, but was present when the murder was discussed and was at the centre when R.T. returned and J.S.'s car was cut up and the parts dispersed.           At the committal proceedings it was urged on behalf of the applicant that:           (1) the Chief Magistrate could not commit the applicant         for return in respect of the R.V. and T.H. murders, since         they were committed outside the territorial jurisdiction         of the United States, and           (2) he could not commit the applicant for return in         respect of the J.S. murder, since there was insufficient         evidence that the murder was intended to take place within         the territorial jurisdiction of the United States.           The Chief Magistrate committed the applicant to await the Secretary of State's order for his return to the United States in respect of all three murders and the kidnapping and drugs offences referred to in the Secretary of State's Orders to Proceed.           The applicant applied to a Divisional Court of the High Court for leave to apply for a writ of habeas corpus in respect of his committal to await his return in respect of the three offences of murder.           On 31 July 1986 his application was refused.   He applied to the Divisional Court for leave to appeal to the House of Lords.   That application was refused.   On 13 August 1986, the applicant petitioned the House of Lords for leave to appeal against the decision of the Divisional Court in respect of the R.V. and T.H. murders.   He did not petition in respect of the J.S. murder.   The applicant's petition for leave to appeal to the House of Lords was heard and rejected by the House of Lords on 24 November 1986.           On 21 November 1986 the applicant petitioned the Secretary of State for Home Affairs to exercise his discretion under Section 11 of the Extradition Act 1870, not to order his surrender to the authorities of the United States, on the ground that it would cause serious risk of his being subject to inhuman and degrading treatment or punishment, contrary to Article 3 of the European Convention on Human Rights.   The Secretary of State refused to exercise his discretion and dismissed the petition.             Relevant domestic law and practice         in the United Kingdom as submitted by the applicant           The law relating to extradition between the United Kingdom and the United States of America is governed by the Extradition Acts and the Treaty signed by the two States on 8 June 1972.   The Treaty is embodied in an Order in Council, No. 2144 of 1976.   For there to be a successful request, the offence charged in the United States warrant must be an "extradition crime".   What is an "extradition crime" depends on the Treaty, and it is only a crime in respect of which extradition may be granted   if it is included in the Extradition Acts or some other relevant statute as an "extradition crime".   Section 26 of the Act provides that the term "extradition crime" means a crime committed in England or within English jurisdiction which would be one of the crimes described in the First Schedule to the Act.   The list includes murder.           Article III of the Treaty provides:   "(1)   The extradition shall be granted for any act or omission       the facts of which disclose an offence within any of the       descriptions in the Treaty ... or any other offence if         (a) the offence is punishable under the law of both       Parties by imprisonment or other form of detention for       more than one year or the death penalty.         (b) the offence is extraditable under the relevant law       being the law of the United Kingdom.         (c) the offence constitutes a felony under the law of       the United States of America."             There is no provision in the Extradition Acts relating to the death penalty.           Article IV of the Treaty provides that:   "If the offence for which extradition is requested is punishable by death under the relevant law of the requesting Party, but the relevant law of the requested Party does not provide for the death penalty in a similar case, extradition may be refused unless the requesting party gives assurances satisfactory to the requested Party that the death penalty will not be carried out."             The exercise of the discretion in Article IV is vested in the Secretary of State by Section 11 of the Act.   It is not available to be argued until the fugitive has exhausted his legal remedies at committal or by way of appeal for a writ of habeas corpus.   The terms of Section 11 are:     "If the police magistrate commits a fugitive criminal to prison, he shall inform such criminal that he will not be surrendered until after the expiration of fifteen days, and that he has a right to apply for a writ of habeas corpus.   Upon the expiration of the said fifteen days, or if a writ of habeas corpus is issued, after the decision of the court upon the return of the writ, as the case may be, or after such further period as may be allowed in either case by the Secretary of State, it shall be lawful for the Secretary of State by warrant ... to order the fugitive criminal ... to be surrendered to such person as in his opinion be duly authorised to receive the fugitive criminal by the foreign state ... and such foreign criminal shall be surrendered accordingly.   It shall be lawful for any person to whom such warrant is directed and for the person so authorised ... to receive, hold in custody and convey within the jurisdiction of such foreign state the criminal mentioned in the warrant ..."             It is the English practice before surrendering a fugitive who is liable to the death penalty to seek the best assurances from the requesting State that the death penalty will not be carried out, although it is generally impossible for the requesting State to give a binding guarantee as to this.   According to the Report of an independent working party of the Home Office, published in 1982, it would appear that in the rare cases where the problem has arisen, the United Kingdom has been able to obtain an assurance that a recommendation against the imposition or execution of the death penalty will be made in appropriate quarters, and in some cases evidence has been provided that the death penalty is not carried out for the offence in question.   It would appear that the United Kingdom Government have never refused to surender a fugitive on these grounds.           The practice referred to in the Report of that working party is to be contrasted with the attitude of the Government of the Federal Republic of Germany.   During the 159th Session of the European Commission of Human Rights in Application No. 9539/81 the applicant complained of his extradition to Turkey where he risked execution. The Government ultimately decided to refuse extradition since the Turkish Government refused to confirm that the sentence would not be carried out.   The application was then struck out at the applicant's request.             Relevant law and practice in the United States         of America as submitted by the applicant           For the purposes of extradition, the law of the United States of America includes the law of any of its States.   The provisions relating to the crime of murder in the law of Florida are as follows:             Florida Statute 782.04(1)(a) provides that:   "[T]he unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any ... kidnapping ... placing or discharging of a destructive device or bomb ..., shall   be murder in the first degree and shall constitute a capital felony, punishable as provided in s.775.9082."             Florida Statute 921.141 provides for further proceedings in which the court is required to conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment.   Further provisions are made for there to be an automatic appeal to the Supreme Court of Florida and power is given to the Governor to stay execution.           The separate sentencing proceedings and the automatic appeal therefrom operate in the following way.   Where an accused is convicted of first degree murder the same trial judge and the same jury reconvene to hear argument on sentence.   Any evidence thought relevant to this issue may then be pleaded and the jury must reach a conclusion on the effect of any aggravating or mitigating factors.   Their conclusion as to whether the death penalty should be imposed is subject to the overriding decision of the judge.   If the judge does override the jury's verdict and imposes a death sentence the reasons for this must be given in writing.           All death sentence cases are automatically reviewed by the Supreme Court of Florida.   Such review must, in accordance with Florida Statute Section 921.141(4), be commenced within 60 days of the certification of the entire record by the sentencing court, a period which may be extended by up to 30 days by the Supreme Court for cause.           Nevertheless, in view of the large number of persons sentenced to death in Florida (over 200 are currently on "death row"), a study in 1982 of the timetable of 16 death penalty cases on appeal to the Supreme Court of Florida revealed that an average of two years and eleven months elapsed before judgment under the automatic review procedure was given, notwithstanding that the above-mentioned Section provides that the review "shall have priority over all other cases".           Thereafter the applicant may file a petition of certiorari with the Supreme Court of the United States.   If such a petition is rejected the State Clemency Board is convened to consider any reasons why the death penalty should be commuted.   The Board may be expected to sit (according to the same survey) some six months after the Supreme Court's rejection of a certiorari petition.   Its decision usually follows some two months later.   If clemency is denied, the State Governor signs a death warrant which will be executed some thirty days later, unless further appeals are then made.             The avenue for any such further appeals would be by application to the trial judge, appeal to the Supreme Court of Florida, appeal to the Federal District Court, further appeal to the United States' Eleventh Circuit Court of Appeals in Atlanta and thence, again, to the Supreme Court of the United States.             Matters relevant to the imposition of the death penalty         in the case of the applicant           It is understood that the Government of the United States is seeking the death penalty in respect of all three murder offences.           The applicant's co-accused R.T. has recently been tried and convicted of the murder of J.S.   The jury recommended a sentence of life imprisonment, but the trial judge overrode the jury's decision and sentenced him to death.   R.T. was also sentenced to life imprisonment without parole in respect of drugs offences.   He still awaits trial in respect of the murders of T.H. and R.V.           Those representing the applicant have enquired of the Secretary of State for Home Affairs and the Director of Public Prosecutions, whether the Secretary of State has sought from the United States' authorities an assurance under Article IV of the Anglo-U.S. Extradition Treaty that the applicant will not be executed and whether one has been given.   The applicant's solicitors have received a letter dated 24 October 1986 from the Crown Prosecution Service, containing an affidavit of the Assistant State Attorney, who is now responsible for the prosecution of the applicant, under certification of the Governor of Florida in which he states that:   "[I]n accordance with Article IV of the Treaty of Extradition between the United States and the United Kingdom, I hereby certify that should (the applicant) be convicted of the offences with which he is charged in Broward County, Florida, as more fully described in the extradition papers previously submitted, a representation will be made in the name of the United Kingdom to the judge at the time of sentencing that it is the wish of the United Kingdom that the death penalty should not be imposed or carried out.   Finally I certify that I have discussed this matter with an authorised representative of the State Attorney for the 17th Judicial Circuit, in and for Broward County, Florida and that the State Attorney concurs in offering this assurance in support of the extradition of (the applicant)."             The letter from the Crown Prosecution Service also states that it is understood that the assurance is regarded as satisfactory by the Home Secretary.           It is submitted that in the circumstances of the applicant's case, particularly the multiplicity of murders, their deliberation, the manner in which they were committed and the applicant's involvement with racketeering and drug trafficking, together with the history of the death penalty in Florida, the said assurance is not satisfactory, and gives serious reason to believe the applicant will still be exposed to the "death row phenomenon".   The assurance can have no real effect on the Florida court, since it is not a factor to be considered by it under the relevant Statute, and its consideration would inevitably raise constitutional issues of profound importance.           The applicant has in mind that Ernest Major Kirkwood (No. 10479/83 Dec. 12.3.84, D.R. 37 p. 158) who was returned to the United States by the United Kingdom on 15 March 1983, has had various pre-trial motions to avoid trial for Capital Murder rejected by the Superior and Appeal Courts.   If that applicant faces trial despite the assurance given in his case, he will be exposed to the "death row phenomenon", whether or not the assurance is ultimately acted upon by the State Governor.   The assurance given in the Kirkwood case, if ineffective to prevent a trial in which the death sentence is sought, can only operate, if at all, after the State and Federal appeals have been made and rejected.   COMPLAINTS           Article 3           The applicant complains that if he is surrendered to the United States, there is serious reason to believe that he will be subjected to inhuman and degrading treatment and punishment in contravention of Article 3 of the Convention.   In support of the applicant's complaint he quotes:           "The Commission has recognised in its previous case law that a person's extradition may, exceptionally, give rise to issues under Article 3 of the Convention where extradition is contemplated to a country in which due to the very nature of the regime in that country, or to a particular situation in that country (emphasis added) basic human rights, such as are guaranteed by the Convention, might be either grossly violated or entirely suppressed" (No. 1802/62, Dec. 26.3.63, Yearbook 6 p. 462 at p.480;   Application No. 10308/83, Altun v.   Federal Republic of Germany, Dec. 3.5.83, D.R. 36 p 209).           "According to the Commission case law concerning cases of extradition under Article 3 of the Convention, the only factor which is relevant is the existence of an objective danger for the person extradited" (No. 10479/83, Dec. 12.3.84, D.R. 37 p. 183).           In Kirkwood, the Government of the United States of America sought the extradition from the United Kingdom of an American citizen charged with two murders and attempted murder.   The State within the United States which sought to try him was the State of California, where the death penalty applied, but where it had not been carried out since 1967.   At the request of the Government of the United Kingdom the Attorney General of California gave what purported to be an assurance under Article IV of the Anglo-United States Extradition Treaty that representations of the United Kingdom Government that he should not be executed would be placed before the Governor of California.   Kirkwood applied to the Commission against his extradition on the ground that the assurance was valueless, and argued that his extradition would constitute a breach of inter alia Article 3 of the Convention in view of the inordinate delays in carrying out the death penalty in California.             After receiving observations of the United Kingdom Government and further observations of Kirkwood, the Commission ruled his complaint inadmissible on the grounds:   (1) that it had not been established that the treatment to which he would be exposed and the risk of his exposure to it was so serious as to constitute inhuman or degrading treatment or punishment contrary to Article 3 of the Convention (loc. cit. p. 188), and   (2) there was nothing to show that the conditions of detention of "death row" prisoners were so severe as to constitute a gravely aggravating aspect in assessing the seriousness of his complaints (loc. cit. p. 190).             In coming to its decision as to his exposure to Article 3 treatment and punishment, the Commission noted that:   (1) the assurance obtained had not removed the risk of Kirkwood being subjected to the "death row phenomenon" (loc. cit. p. 188)   (2) the probability that if convicted he would be exposed to the "death row phenomenon" was high (loc. cit. p. 185).             It decided that it did not attain the degree of seriousness envisaged by Article 3, because   (1) of the complex and detailed measures to accelerate the appeals in capital cases in California, particularly the priority assigned to them as to counsel and the formal time limit imposed by the Supreme Court (loc. cit. p. 188)   (2) of the momentous significance of the appeals on the applicant (loc. cit. p. 188)   (3) the "death row phenomenon" was an arguable basis for alleging cruel or unusual punishment in the United States, particularly California (People v.   Anderson, 493 P 2d 880).   Although the argument had not yet been successful in putting an end to the "death row phenomenon", the Commission expressed its confidence in the rapid developments of which the common law was capable and held that the worsening of the "death row phenomenon" would give better grounds for such an argument (loc. cit. p. 189) in the United States' courts.             The Commission said its task was to examine the machinery of justice to which Kirkwood would be subjected and to establish whether there were any aggravating factors which might indicate arbitrariness or unreasonableness in its operation.   It concluded that capital cases in California were dealt with so as to ensure compliance with the provisions against arbitrariness laid down in the Californian and United States' Constitutions.             It is submitted that the applicant's case is to be distinguished from the Kirkwood case:   (1) because of the entirely different circumstances existing in Florida, as opposed to California, as disclosed by the documents submitted in support of the application, in particular the number of "death row" detainees, the severe conditions of their detention, the number of consequential appeals in capital cases, the consequential delays in those proceedings and the preparedness of the authorities nevertheless to execute appellants after the failure of their appeals, years after their trials,   (2) because the evidence indicates clearly that, whatever the machinery of justice pertaining in Florida and the United States generally, the existing situation to which the applicant will be exposed in Florida, indicates that he will suffer the "death row phenomenon", and   (3) because the Supreme Court of the United States is ineffective to prevent it.             Alternatively, the Commission should independently determine that the question is one which should be admitted in order that it can be given full and proper consideration by the Court.   It is further submitted that the evidence indicates that the situation in the United States, far from improving, as the Commission suggested it might, in the Kirkwood case, has been aggravated.           It is submitted, on the basis of voluminous and substantial evidence, that if the applicant is surrendered to the United States, there is serious reason to believe that he will be subjected to inhuman and degrading treatment and punishment in contravention of Article 3 of the Convention.   Such inhuman and degrading treatment and punishment arises from the exceptional and inordinate delay in carrying out the death penalty in Florida, together with the aggravating circumstances arising from the conditions of imprisonment.           The applicant contends that the system of capital punishment as operated in Florida is arbitrary and discriminatory.   The development of the case-law in this area has reduced the protection of the accused and exacerbated the psychological pressure on "death row" detainees.           Following its decision in Lockhart v.   McCrea (No. 84-18 65) the Supreme Court of the United States has permitted the exclusion of committed opponents of the death penalty from juries in capital cases. The risk of a conviction and death sentence is thereby arbitrarily increased.           Evidence submitted by the applicant tends to show that juries are arbitrarily predisposed to sentence to death persons who kill white, rather than black, people.   Arbitrary factors including the geographical location of the murder, as well as the victim's race and that of the accused, appear to influence juries.   In addition, in Florida the trial judge may overrule a jury's sentence of life imprisonment and impose the death penalty;   this has occurred ninety-three times.             The severity of the "death row" conditions themselves is acute and made worse by the duration of the proceedings.   Those executed between 1977 and 1984 spent an average of 6 years on "death row" between sentence and execution.   In one case, Sullivan, the period was ten years.           The "death row" detainees occupy cells two metres by three, which they leave only to shower three times per week for five minutes, for exercise in a special yard for only 16 hours per month (twice two hours per week), or for visits.   Visits are limited, there is no access to the prison library or educational facilities, prisoners cannot work in the prison, their diet and medical treatment is poor and their sole contact is with warders.           The nature of the execution and its implementation are also referred to.           In Florida execution is by electrocution.   Following the signing of the Governor's execution warrant the condemned man is transferred to a special cell, in close proximity to the execution chamber.   He is deprived of all his personal belongings and must ask a warder for all his needs.   He is kept under supervision at thirty minute intervals;   this interval is reduced to fifteen minutes during the final week.   During the final week before an execution the electric chair is tested.   The resultant power surge dims the lights throughout the prison.           On the day of execution the applicant's hair is shaved on his head and calf.   Both are smeared with a current-conducting jelly prior to the attachment of the electrodes.   The condemned man's head is covered after he has been strapped into the oak chair, known as "Ol' Sparky", which has been used for executions in Florida since electrocution was introduced.   One shock of two thousand volts is not invariably sufficient to kill;   in the case of Spenkelink (1979) three shocks had to be administered over a six minute period before death was certified.           The applicant contends that because Florida has the largest "death row" population of any State, but a tremendous backlog of death penalty cases, "death row" inmates remain in the inhuman conditions described above for an inordinate amount of time.           Article 13           According to the jurisdiction of the Commission, where an individual has an arguable claim to be a victim of a violation of the rights set forth in the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to have redress (Eur.   Court H.R., judgment of Silver and Others of 25 March 1983, Series A no. 61 paras. 111-9 and Eur.   Court H.R., Klass and Others judgment of 6 September 1978, Series A no. 28).           In the Kirkwood case, after the Commission had withdrawn its ruling under Rule 36 of the Rules of Procedure, and before the Commission had given its decision as to the admissibility of his application, the Secretary of State for Home Affairs ordered Kirkwood's surrender to the United States under Section 12 of the Extradition Act 1870, in spite of his petitioning against his surrender on the same terms as his application to the Commission. Kirkwood applied to the High Court for judicial review of the order on the grounds that it was unreasonable to surrender him:           (1)   during the pendency of the European proceedings, and           (2)   in violation of the United Kingdom's obligations to the              European Convention of Human Rights.           Kirkwood also applied for a stay of the Secretary of State's order and a writ of habeas corpus on the same grounds.   His applications were refused by the High Court, which also refused him leave to appeal to the House of Lords.   The House of Lords also refused leave to appeal.   These two judgments of the High Court are binding on the present applicant.           The United Kingdom has not incorporated the Convention into its domestic law, although the English courts may take it into account as an aid to statutory construction: R v.   Chief Immigration Officer, ex parte Bajan Singh (1976) 1 QB 198, R v.   Chief Immigration Officer, ex parte Bibi (1976) 1 WLR 979.   The High Court in R v.   Secretary of State for the Home Department, ex parte Kirkwood (1984) 2 All E R 390, relying on R v.   Secretary of State, ex parte Fernandez (1981) Imm App R I, held that the Secretary of State was under no obligation to observe the duties imposed by Human Rights treaties.           It follows that the Secretary of State is not required to have due regard to the Convention in exercising his discretion under Section 11 of the Act, and there is every reason to believe that in a case such as the applicant's, where the alternative to extradition is to leave him free within the English community, the Secretary of State would disregard it.   The courts which examined the lawfulness of the applicant's extradition could not examine the allegation that the applicant's surrender would involve a violation of Article 3 of the Convention.           It is submitted that in these circumstances the applicant has no effective remedy as required by Article 13 for the breach of Article 3 which he alleges.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 24 November 1986 and registered on the same day.   It was examined by the Rapporteur on the same day and information was requested from the respondent Government pursuant to Rule 40 (2)(a) of the Rules of Procedure concerning the imminency of the surrender of the applicant to the authorities of the United States of America.           The respondent Government replied on 28 November 1986.   The Commission examined the admissibility of the application on 9 December 1986 and decided, in accordance with Rule 42 (2)(b) of the Rules of Procedure, to invite the respondent Government to submit written observations on its admissibility and merits before 2 January 1987.     On 17 December 1986 the respondent Government requested an extension for the submission of the observations which was granted by the President of the Commission until 16 January 1987.   Two further extensions for the submission of the observations were sought by the respondent Government, on 14 January 1987 and 29 January 1987, which were required inter alia to enable information to be obtained from the United States' authorities, both of which were granted, the latter until 27 February 1987.   The observations were submitted on 4 March 1987.   The applicant was invited to submit observations in reply before 27 March 1987.   On 23 March 1987 the applicant's representative requested an extension until 14 April 1987 in the time limit for the submission of these observations to enable legal opinions to be sought from the applicant's representatives in the United States.   This extension was granted by the President of the Commission on 26 March 1987 and the observations were submitted on 13 April 1987.           On 14 May 1987 the Commission resumed its examination of the admissibility of the application and decided to invite the parties, pursuant to Rule 42 (3)(b) of the Rules of Procedure, to make further submissions on its admissibility and merits orally at a hearing.           The hearing was fixed for 13 July 1987.   On 1 July 1987 the applicant's representatives informed the Commission by telex that the applicant wished to withdraw his application.   The President of the Commission decided on the same day to cancel the proposed hearing and the parties were so informed.   FINDINGS OF THE COMMISSION           The applicant complained about his proposed extradition from the United Kingdom to the United States of America and about the alleged inadequacy of the remedies available under English law against the decision to surrender him to the authorities of the United States of America.   However, it appears from the applicant's representatives' telex of 1 July 1987 that the applicant, who has been and continues to be independently advised throughout, wishes to withdraw his application.   The Commission finds that there are no reasons of a general character affecting the observance of the Convention which necessitate a further examination of the case.           For these reasons the Commission           DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.               Secretary                              President      to the Commission                       of the Commission            (H.C. KRÜGER)                          (C.A. NØRGAARD)