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S, a German national, was in the custody of the UK and was wanted for extradition to the USA on a (capital) murder charge. The prosecuting authorities in the state where he was wanted, Virginia, made it clear they would seek the death penalty. S sought to challenge his removal to that state's jurisdiction on the grounds that it would be unlawful for a Convention state to remove an individual to a jurisdiction where there was a 'real risk' he would suffer treatment contrary to the Convention. The state could not, as it were, contract out of the violation by sending the individual abroad to face treatment that was unlawful at home. At that time, capital punishment was not yet outlawed under the Convention – it remained one of the recognised exceptions in the ECHR, art 2. S could not argue that removal to face possible death in Virginia was thus directly contrary to the Convention. Instead, he successfully argued that the manner in which the process of capital punishment was carried out in the USA would violate the ECHR, art 3, as constituting inhuman or degrading treatment or punishment. This was not specifically the means of inflicting death, but rather the drawn out nature of the legal proceedings, in which it was not uncommon for inmates to be stuck on death row for many years. This was seen to produce a debilitating (and, as the court felt, inhuman) psychological condition: the so-called 'death row phenomenon'.

Soering v UK (1989) 11 EHRR 439