Compendium of case law of the European Court of Human Rights on the death penalty and extrajudicial execution E-Book

Jeremy McBride

• Herausgeber: Council of Europe
• Kategorie: Geisteswissenschaft
• Sprache: Englisch
• Veröffentlichungsjahr: 2022

Seitenzahl: 518

Beschreibung

Ensuring respect for one of the fundamental values of humanity in our society through the European Convention on Human Rights and the European Court of Human RightsThe compendium’s aim is to assist national judges, prosecutors and lawyers from the 46 member states of the Council of Europe to deal with extradition or deportation cases when there is a risk of the death penalty being imposed in third countries or of extrajudicial execution. It also aims at enabling legal professionals from countries where the death penalty still exists to develop arguments based upon the reasoning of the case law of the European Court of Human Rights. It contains relevant extracts from the Court’s case law, structured in a user-friendly way.

Jeremy McBride is a Barrister at Monckton Chambers, London, specialising in cases before the European Court of Human Rights and the United Nations Human Rights Committee. He is President of the Expert Council on NGO Law of the Council of Europe’s Conference of International Non-Governmental Organisations (INGOs), a former member and Chair of the Scientific Committee of the European Union’s Fundamental Rights Agency, and co-founder and Chair of the International Centre for the Legal Protection of Human Rights (INTERIGHTS).

Leseprobe

 

COMPENDIUM OF CASE LAW

OF THE EUROPEAN COURT

OF HUMAN RIGHTS

ON THE DEATH PENALTY

AND EXTRAJUDICIAL EXECUTION

 

Contents

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Foreword

We should be extremely proud of the Council of Europe’s achievement in leading the way to a death-penalty-free zone (in practice if not always in law) within its member states. This is thanks in large part to the European Convention on Human Rights and its two additional protocols on the death penalty: Protocol No. 6, which provides for abolition of the death penalty in peacetime, and Protocol No. 13, which provides for its abolition in all circumstances. It is also the result of the interpretation of those instruments by the European Court of Human Rights. Using the living instrument doctrine to interpret the European Convention on Human Rights in the light of present-day conditions, the Court has been able to promote a higher standard of human rights protection within Europe on this crucial issue of human dignity.

However, the decline in use of the death penalty worldwide in 20201 should not make us complacent about the continuing human rights work that is needed to ensure a complete de facto and de jure abolition of the death penalty across the world.

This essential compendium of case law of the European Court of Human Rights will provide ample material for that work to judges, legal practitioners and academics within the Council of Europe legal space. It will also provide inspiration to those further afield. This includes awareness of the use of extrajudicial execution or the risk of it occurring through proceedings for expulsion, extradition or other forms of removal or transfer, as the last chapter of this compendium demonstrates.

Numerous examples of the Court developing fundamental principles relating to capital punishment can be found in this compendium, from Soering v. the United Kingdom and Öcalan v. Turkey [GC] to Al-Saadoon and Mufdhi v. the United Kingdom.

The added value of this compendium – which includes extracts from the judgments in English and translations of those where the judgments are only in French, as well as any relevant dissenting or concurring opinions – is the structured approach by article of the Convention and theme. In particular, practitioners will be able to consult the extensive case law developed by the Court in extradition or deportation cases where a violation of Article 2 or 3 is alleged.

Outlawing the death penalty is a work in progress for the Council of Europe. This can be seen by the very recent Recommendation CM/Rec (2021) 2 of the Committee of Ministers to member States on measures against the trade in goods used for the death penalty, torture and other cruel, inhuman or degrading treatment or punishment and the work of the Parliamentary Assembly’s general rapporteur on the abolition of the death penalty, in particular as regards observer states.

This compendium of case law underlines how the European Convention on Human Rights and the European Court of Human Rights ensure respect for one of the basic values of humanity within our society.

Robert Spano, President

European Court of Human Rights

1 Amnesty International, “Death penalty in 2020: Facts and figures”: www.amnesty.org/en/latest/news/2021/04/death-penalty-in-2020-facts-and-figures/.

Chapter 1Introduction

This compendium is intended to help judges, lawyers and prosecutors from Council of Europe member states deal with cases involving, in particular, expulsion, extradition or other procedures for removal and transfer, when it is considered that there is a risk of the death penalty being imposed in third countries, and cases involving a risk of extrajudicial execution or those in which this is considered to have occurred.

It also aims to enable legal professionals from countries where the death penalty still exists to develop arguments based upon the reasoning of the case law of the European Court of Human Rights ( “the Court” or “the European Court”), as well as that of the former European Commission of Human Rights ( “the former European Commission”).1

In this case law, a number of different terms can be found to have been used where issues relating to the death penalty and extrajudicial execution have been raised.

Thus, in addition to the “death penalty”, reference can be made in the case law to “capital punishment” and “death sentence” (or condamné à mort, peine capitale and peine de mort). Similarly, “extrajudicial execution” (also spelt with a hyphen) can also be referred to as “extrajudicial killing” (exécution extrajudiciaire).

Whatever the terminology used, the European Court, as well as the former European Commission, has been faced with implementing the European Convention on Human Rights ( “the European Convention” or “the Convention”) and its protocols in applications raising a wide range of issues concerned with the imposition and application of the death penalty and the practice of extrajudicial execution.

When the European Convention was adopted, the use of the death penalty was a feature of the criminal justice systems in some, but not all, Council of Europe member states. The possibility of imposing this penalty was, therefore, accommodated in paragraph 1 of Article 2 (right to life) of the European Convention.

However, although applications submitted to the former European Commission and the European Court have included those where the death penalty was imposed by the courts of some member states, there has never been a case in which either body has had to address a situation where the actual implementation by a member state of the death penalty had occurred or was even probable.

Nonetheless, both the European Court and the former European Commission have been faced with many applications raising issues relating to the imposition and implementation of the death penalty that involve states other than those belonging to the Council of Europe. Such applications have been brought before these two bodies because of proceedings taken by member states with a view to expelling, extraditing or otherwise removing or transferring the applicants in circumstances where it was alleged that this would entail a violation of the European Convention.

Notwithstanding the limitation on the protection afforded by the right to life in Article 2, the ability to invoke the European Convention proved possible in the first place through reliance on other provisions, most notably the potential for the imposition or application of the death penalty to lead in some circumstances to inhuman and degrading treatment contrary to Article 3. In particular, this was so where the imposition of the death penalty would lead to the person concerned being subjected to the death row phenomenon – a prolonged period of time spent on death row in extreme conditions, with the ever-present and mounting anguish of awaiting implementation of the death penalty – or to the actual conditions on death row themselves.

This approach has been reinforced by the recognition that the imposition of the death penalty where there had been a flagrant denial of a fair trial would amount not only to a violation of the rights under Article 6 but could also be contrary to both the right to life under Article 2 and the prohibition of inhuman and degrading treatment under Article 3.

The approach taken in the case law has been an evolutionary one, reflecting the changing attitudes within Council of Europe member states and manifested in practice with the adoption of Protocols No. 6 and No. 13, which required the abolition of the death penalty, first with an exception in time of war or its imminent threat, and then in all circumstances.

These two protocols have reinforced the protection afforded by the European Convention such that the European Court could conclude that their extensive ratification, together with consistent state practice in observing a moratorium on capital punishment, was strongly indicative that Article 2 had been amended to prohibit the death penalty in all circumstances and that the wording of the second sentence of Article 2 (1) could not, therefore, continue to act as a bar to its interpretation of the words “inhuman or degrading treatment or punishment” in Article 3 as including the death penalty.2

While the protocols and commitments made on admission to the Council of Europe may have outlawed the use of the death penalty in its member states, the case law of the European Court has underlined its unacceptability by reference to human rights other than the right to life that are accepted on a more universal basis, namely, the prohibition of inhuman and degrading treatment and the right to a fair trial.3

This case law is thus important in both resisting the use of the death penalty in countries that have undertaken to respect those rights and contesting expulsion, extradition or other forms of removal and transfer to another country where there is a real risk of that penalty being used against the person in question. Moreover, this case law provides useful guidance as to what is required to establish that such a real risk exists.

Although the European Court has not had to determine cases in which the death penalty has been used by Council of Europe member states, it has had to consider the potential for the European Convention to be violated through steps taken to comply with the fact that, subsequent to its imposition, this penalty has become unacceptable. In particular, where a sentence of life imprisonment has been substituted for the death penalty, there has been a need to bring such sentences into line with the requirement that all such sentences must not be irreducible.

Applications to the European Court raising issues related to the death penalty have been joined in more recent years by applications in which there are allegations about the use or risk of extrajudicial execution, both within member states of the Council of Europe and elsewhere. Such a measure – which is by no means a recent phenomenon – entails the imposition of a death penalty without even the pretence of a trial and it is clearly contrary to the right to life guaranteed by Article 2 of the European Convention.

Not only will use of extrajudicial execution in any Council of Europe member state be a violation of the European Convention, but exposing someone to a real risk of such execution occurring through proceedings for expulsion, extradition or other forms of removal and transfer will also give rise to the same issues of compliance with the rights guaranteed by the Convention, as has been seen in respect of the risk of the death penalty being imposed. In addition, such executions will have the potential to violate the prohibition on inhuman and degrading treatment of those witnessing them. However, the extent of any duty to investigate alleged extrajudicial execution before the European Convention became binding on a member state is limited.

The compendium first sets out the text of the provisions of the European Convention relevant to cases involving the death penalty or extrajudicial execution. It then groups extracts from the rulings of the European Court, and the former European Commission, dealing with issues related to the death penalty and extrajudicial execution under five main headings: Imposition of the death penalty; Application of the death penalty; Substitution of the death penalty by life imprisonment; Expulsion/ extradition/removal/transfer; and Extrajudicial execution. For each main heading a series of sub-issues are then addressed in order to illustrate the different dimensions of the case law and to enhance its usability.

The extracts of the cases selected – either taken from the original English versions or translated into English where a French-language version is the only one available – are set out in chronological order so that it is possible to see how the case law has evolved. This evolution, together with the different approaches that may be taken in respect of a particular issue, is reinforced by including any concurring or dissenting opinions, with the latter in some instances having influenced future rulings of the European Court.

In addition to the cases from which extracts have been taken, there are also references to other cases on the particular sub-issue concerned in which similar rulings have been given or, as in one instance, a different approach taken. There is also some cross-referencing where an extract may deal with more than one sub-issue.

Space constraints have allowed only limited extracts to be chosen, and as a result references to the case law, parts of sentences and even paragraphs have often been omitted (indicated by ellipses). Any footnotes in judgments have also been omitted and thus any footnotes in extracts are editorial ones, with one exception. This has been done in a manner which hopefully still gives a sense of the essential reasoning and the specific context of the ruling, while at the same time endeavouring not to misrepresent the stance of the European Court or the former European Commission.

The full text of all the rulings from which the extracts have been derived can be found on the HUDOC database of the European Court (www.echr.coe.int/ECHR/EN/hudoc), generally in both English and French but in some instances only in one of these languages. The case names of rulings that involve an admissibility decision rather than a judgment are followed by “(dec.)”.4 Where a case has more than one application number only the first one is included.

The extracts are from rulings up to 31 October 2021.

Jeremy McBride

1 This body had a role in implementing the Convention until the coming into force of Protocol No 11, but its rulings on a number of important points relating to the death penalty remain authoritative. The compendium assumes a basic familiarity with the European Convention system.

2 Al-Saadoon and Mufdhi v. the United Kingdom, Application No. 61498/08, 2 March 2010, at paragraph 120.

3 While the right to life in Article 6 of the International Covenant on Civil and Political Rights includes an exception allowing the imposition of the death penalty in countries that have not yet abolished it, this is qualified in the following manner: “sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court”. The imposition of the death penalty in the absence of a fair trial will violate both Article 6 and the right to a fair trial under Article 14 of the International Covenant; see most recently the Views of the United Nations Human Rights Committee in Mikhalenya v. Belarus, communication No. 3105/2018, adopted 21 July 2021. Moreover, as under Article 3 of the European Convention, the manner of execution, the death row phenomenon and conditions on death row can violate the prohibition of cruel, inhuman or degrading treatment or punishment in Article 7 of the International Covenant. See further Human Rights Committee, General Comment No. 36, Article 6: right to life, CCPR/C/GC/36, 3 September 2019, paragraphs 32-51.

4 In the one instance where a report of the former European Commission is involved, the case name is followed by “(Rep.)”.

Chapter 2Provisions of the European Convention on Human Rights

ARTICLE 2Right to life

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

ARTICLE 3Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

PROTOCOL NO. 6, ARTICLE 1Abolition of the death penalty

The death penalty shall be abolished. No one shall be condemned to such penalty or executed.

PROTOCOL NO. 6, ARTICLE 2Death penalty in time of war

A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.

PROTOCOL NO. 13, ARTICLE 1Abolition of the death penalty

The death penalty shall be abolished. No one shall be condemned to such penalty or executed.

Chapter 3Imposition of the death penalty

COMPATIBILITY WITH THE CONVENTION

Article 2

► X. v. the United Kingdom (dec.), Application No. 5712/72, 18 July 1974

(…) The applicant is a violent killer originally sentenced to death and it was only after his death sentence was commuted that it was decided to send him to the United Kingdom. The death sentence itself would not have been contrary to the provisions of the Convention – see Article 2 (…).

► Kaboulov v. Ukraine, Application No. 41015/04, 19 November 2009

99. The Court observes that, in the context of extradition and positive obligations under Article 2 of the Convention, in complying with their obligations in the area of international legal cooperation in criminal matters, the Contracting States must have regard to the requirements enshrined in that provision of the Convention. Thus, in circumstances where there are substantial grounds to believe that the person in question, if extradited, would face a real risk of being liable to capital punishment in the receiving country, Article 2 implies an obligation not to extradite the individual… Furthermore, if an extraditing State knowingly puts the person concerned at such high risk of losing his life as for the outcome to be near certainty, such an extradition may be regarded as “intentional deprivation of life”, prohibited by Article 2 of the Convention (…).

Article 3

► Ilaşcu and Others v. Moldova and Russia [GC], Application No. 48787/99, 8 July 2004

429. The Court has previously held that, regard being had to developments in the criminal policy of the member States of the Council of Europe and the commonly accepted standards in that sphere, the death penalty might raise an issue under Article 3 of the Convention. Where a death sentence is passed, the personal circumstances of the condemned person, the proportionality to the gravity of the crime committed and the conditions of detention pending execution of the sentence are examples of factors capable of bringing the treatment or punishment received by the condemned person within the proscription under Article 3 (see Soering v. the United Kingdom… § 104, and Poltoratskiy v. Ukraine… § 133…).

► Öcalan v. Turkey [GC], Application No. 46221/99, 12 May 2005

a) Legal significance of the practice of the Contracting States as regards the death penalty

162. The Court must first address the applicant’s submission that the practice of the Contracting States in this area can be taken as establishing an agreement to abrogate the exception provided for in the second sentence of Article 2 § 1, which explicitly permits capital punishment under certain conditions. In practice, if Article 2 is to be read as permitting capital punishment, notwithstanding the almost universal abolition of the death penalty in Europe, Article 3 cannot be interpreted as prohibiting the death penalty since that would nullify the clear wording of Article 2 § 1 (see Soering… § 103).

163. The Grand Chamber agrees with the following conclusions of the Chamber on this point (see paragraphs 190-96 of the Chamber judgment):

“… The Court reiterates that it must be mindful of the Convention’s special character as a human rights treaty and that the Convention cannot be interpreted in a vacuum. It should so far as possible be interpreted in harmony with other rules of public international law of which it forms part (see, mutatis mutandis, Al-Adsani v. the United Kingdom [GC], No. 35763/97, § 55, ECHR 2001-XI, and Loizidou v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2231, § 43). It must, however, confine its primary attention to the issues of interpretation and application of the provisions of the Convention that arise in the present case.

… It is recalled that the Court accepted in Soering that an established practice within the member States could give rise to an amendment of the Convention. In that case the Court accepted that subsequent practice in national penal policy, in the form of a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under Article 2 § 1 and hence remove a textual limit on the scope for evolutive interpretation of Article 3 (ibid., pp. 40-41, § 103). It was found, however, that Protocol No. 6 showed that the intention of the States was to adopt the normal method of amendment of the text in order to introduce a new obligation to abolish capital punishment in time of peace and to do so by an optional instrument allowing each State to choose the moment when to undertake such an engagement. The Court accordingly concluded that Article 3 could not be interpreted as generally prohibiting the death penalty (ibid., pp. 40-41, §§ 103-04).

… The applicant takes issue with the Court’s approach in Soering. His principal submission was that the reasoning is flawed since Protocol No. 6 represents merely one yardstick by which the practice of the States may be measured and that the evidence shows that all member States of the Council of Europe have, either de facto or de jure, effected total abolition of the death penalty for all crimes and in all circumstances. He contended that as a matter of legal theory there was no reason why the States should not be capable of abolishing the death penalty both by abrogating the right to rely on the second sentence of Article 2 § 1 through their practice and by formal recognition of that process in the ratification of Protocol No. 6.

… The Court reiterates that the Convention is a living instrument which must be interpreted in the light of present-day conditions and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see Selmouni v. France [GC], No. 25803/94, § 101, ECHR 1999-V).

… It reiterates that in assessing whether a given treatment or punishment is to be regarded as inhuman or degrading for the purposes of Article 3 it cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field (see Soering, cited above, p. 40, § 102). Moreover, the concepts of inhuman and degrading treatment and punishment have evolved considerably since the Convention came into force in 1953 and indeed since the Court’s judgment in Soering in 1989.

… Equally the Court observes that the legal position as regards the death penalty has undergone a considerable evolution since Soering was decided. The de facto abolition noted in that case in respect of twenty-two Contracting States in 1989 has developed into a de jure abolition in forty-three of the forty-four Contracting States and a moratorium in the remaining State that has not yet abolished the penalty, namely Russia. This almost complete abandonment of the death penalty in times of peace in Europe is reflected in the fact that all the Contracting States have signed Protocol No. 6 and forty-one States have ratified it, that is to say, all except Turkey, Armenia and Russia. It is further reflected in the policy of the Council of Europe, which requires that new member States undertake to abolish capital punishment as a condition of their admission into the organisation. As a result of these developments the territories encompassed by the member States of the Council of Europe have become a zone free of capital punishment.

… Such a marked development could now be taken as signalling the agreement of the Contracting States to abrogate, or at the very least to modify, the second sentence of Article 2 § 1, particularly when regard is had to the fact that all Contracting States have now signed Protocol No. 6 and that it has been ratified by forty-one States. It may be questioned whether it is necessary to await ratification of Protocol No. 6 by the three remaining States before concluding that the death penalty exception in Article 2 § 1 has been significantly modified. Against such a consistent background, it can be said that capital punishment in peacetime has come to be regarded as an unacceptable… form of punishment that is no longer permissible under Article 2.”

164. The Court notes that, by opening for signature Protocol No. 13 concerning the abolition of the death penalty in all circumstances, the Contracting States have chosen the traditional method of amendment of the text of the Convention in pursuit of their policy of abolition. At the date of this judgment, three member States have not signed this Protocol and sixteen have yet to ratify it. However, this final step towards complete abolition of the death penalty – that is to say both in times of peace and in times of war – can be seen as confirmation of the abolitionist trend in the practice of the Contracting States. It does not necessarily run counter to the view that Article 2 has been amended in so far as it permits the death penalty in times of peace.

165. For the time being, the fact that there is still a large number of States who have yet to sign or ratify Protocol No. 13 may prevent the Court from finding that it is the established practice of the Contracting States to regard the implementation of the death penalty as inhuman and degrading treatment contrary to Article 3 of the Convention, since no derogation may be made from that provision, even in times of war. However, the Grand Chamber agrees with the Chamber that it is not necessary for the Court to reach any firm conclusion on these points since, for the following reasons, it would be contrary to the Convention, even if Article 2 were to be construed as still permitting the death penalty, to implement a death sentence following an unfair trial.

PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE GARLICKI

I. Article 3

1. I am writing this separate opinion because I feel that, in this case, the Court should have decided, in the operative provisions of its judgment, that Article 3 had been violated because any imposition of the death penalty represents per se inhuman and degrading treatment prohibited by the Convention. Thus, while correct, the majority’s conclusion that the imposition of the death penalty following an unfair trial represents a violation of Article 3 seems to me to stop short of addressing the real problem.

2. It is true that the majority’s conclusion was sufficient to establish a violation in the instant case and that it was not absolutely necessary to produce any firm conclusion on the – more general – point of whether the implementation of the death penalty should now be regarded as inhuman and degrading treatment contrary to Article 3 in all circumstances. I accept that there are many virtues in judicial self-restraint, but am not persuaded that this was the best occasion to exercise it.

I am fully aware that the original text of the Convention allowed capital punishment provided the guarantees referred to in Article 2 § 1 were in place. I am also aware that in Soering v. the United Kingdom… this Court declined to hold that the new international context permitted it to conclude that the exception provided for in the second sentence of Article 2 § 1 had been abrogated. Today the Court, while agreeing that “it can be said that capital punishment in peacetime has come to be regarded as an unacceptable… form of punishment which is no longer permissible under Article 2” (see paragraph 163 of the judgment), seems to be convinced that there is no room for the death penalty even within the original text of the Convention. But, at the same time, it has chosen not to express that position in a universally binding manner. In my opinion, there are some arguments suggesting that the Court could and should have gone further in this case.

3. First of all, there seems to be no dispute over the substance of the problem. The Court was clearly right in observing that, over the past fifteen years, the territories encompassed by the member States of the Council of Europe have become a zone free of capital punishment and that such a development could now be taken as signalling the agreement of the Contracting States to abrogate, or at the very least to modify, the second sentence of Article 2 § 1. It is not necessary to recapitulate here all the relevant developments in Europe; it seems sufficient to quote the 2002 opinion of the Parliamentary Assembly of the Council of Europe in which it recalled that in its most recent resolutions “it reaffirmed its beliefs that the application of the death penalty constitutes inhuman and degrading punishment and a violation of the most fundamental right, that to life itself, and that capital punishment has no place in civilised, democratic societies governed by the rule of law”. Thus, today, in 2005, condemnation of the death penalty has become absolute and even fairness of the highest order at trial cannot legitimate the imposition of such a penalty. In other words, it is possible to conclude that the member States have agreed through their practice to modify the second sentence of Article 2 § 1. The only problem is: who shall have the power to declare, in a binding manner, that such modification has taken place? So, this is a problem not of substance, but of jurisdiction (competence). In consequence, the only question that remains is whether the Court has the power to state the obvious truth, namely that capital punishment has now become an inhuman and degrading punishment per se.

4. In answering this question, it is necessary to bear in mind that the Convention, as an international treaty, should be applied and interpreted in accordance with general rules of international law, in particular Article 39 of the Vienna Convention. This suggests that the only way to modify the Convention is to follow the “normal procedure of amendment” (see paragraphs 103-04 of Soering, cited above, and paragraphs 164-65 of the present judgment).

But the Convention represents a very distinct form of international instrument and – in many respects – its substance and process of application are more akin to those of national constitutions than to those of “typical” international treaties. The Court has always accepted that the Convention is a living instrument and must be interpreted in the light of present-day conditions. This may result (and, in fact, has on numerous occasions resulted) in judicial modifications of the original meaning of the Convention. From this perspective, the role of our Court is not very different from the role of national Constitutional Courts, whose mandate is not only to defend constitutional provisions on human rights, but also to develop them. The Strasbourg Court has demonstrated such a creative approach to the text of the Convention many times, holding that the Convention rights and freedoms are applicable to situations which were not envisaged by the original drafters. Thus, it is legitimate to assume that, as long as the member States have not clearly rejected a particular judicial interpretation of the Convention (as occurred in relation to the expulsion of aliens, which became the subject of regulation by Protocols Nos. 4 and 7), the Court has the power to determine the actual meaning of words and phrases which were inserted into the text of the Convention more than fifty years ago. In any event, and this seems to be the situation with regard to the death penalty, the Court may so proceed when its interpretation remains in harmony with the values and standards that have been endorsed by the member States.

5. This Court has never denied that the “living-instrument approach” may lead to a judicial imposition of new, higher standards of human rights protection. However, with respect to capital punishment, it adopted – in Soering – “a doctrine of preemption”. As I have mentioned above, the Court found that, since the member States had decided to address the problem of capital punishment by way of formal amendments to the Convention, this matter became the “preserve” of the States and the Court was prevented from applying its living-instrument doctrine.

I am not sure whether such an interpretation was correct in Soering or applicable to the present judgment.

The judgment in Soering was based on the fact that, although Protocol No. 6 had provided for the abolition of the death penalty, several member States had yet to ratify it in 1989. Thus, it would have been premature for the Court to take any general position as to the compatibility of capital punishment with the Convention. Now, the majority raises basically the same argument with respect to Protocol No. 13, which, it is true, remains in the process of ratification.

But this may only demonstrate a hesitation on the part of certain member States over the best moment to irrevocably abolish the death penalty. At the same time, it can no longer be disputed that – on the European level – there is a consensus as to the inhuman nature of the death penalty. Therefore, the fact that governments and politicians are preparing a formal amendment to the Convention may be understood more as a signal that capital punishment should no longer exist than as a decision pre-empting the Court from acting on its own initiative.

That is why I am not convinced by the majority’s replication of the Soering approach. I do not think that there are any legal obstacles to this Court taking a decision with respect to the nature of capital punishment.

6. Such a decision would have universal applicability; in particular, it would prohibit any imposition of the death penalty, not only in times of peace but also in wartime or other warlike situations. But it should not stop the Court from taking this decision today. It may be true that the history of Europe demonstrates that there have been wars, like the Second World War, during which (or after which) there was justification for capital punishment. I do not think, however, that the present interpretation of the Convention should provide for such exceptions: it would be rather naïve to believe that, if a war of a similar magnitude were to break out again, the Convention as a whole would be able to survive, even if concessions were made with regard to the interpretation of capital punishment. On the other hand, if there is a war or armed conflict of a local dimension only – and this has been the experience of the last five decades in Europe – the international community could and should insist on respect for basic values of humanity, inter alia, on the prohibition of capital punishment. The same reasoning should apply to other “wars”, like – in particular – the “war on terror”, in which there is today no place for capital punishment (see Article X § 2 of the Committee of Ministers of the Council of Europe’s “Guidelines on human rights and the fight against terrorism” issued on 11 July 2002).

Furthermore, it is notable that, as the Statute of the recently established International Criminal Court shows, the international community is of the opinion that even the most dreadful crimes can be dealt with without resorting to capital punishment.

7. In the last fifteen years, several Constitutional Courts in Europe have been invited to take a position on capital punishment. The courts of Hungary, Lithuania, Albania and Ukraine had no hesitation in decreeing that capital punishment was no longer permitted under the Constitutions of their respective countries, even if this was not clearly stated in the written text of those documents. The Constitutional Courts have, nevertheless, adopted the position that the inability of the political branches of government to take a clear decision on the matter should not impede the judicial branch from doing so. A similar approach was taken by the Constitutional Court of South Africa.

I am firmly convinced that the European Court of Human Rights should have followed the same path in the present judgment.

► Al-Saadoon and Mufdhi v. the United Kingdom, Application No. 61498/08, 2 March 2010

1. General principles

(a) Protocol No. 13 to the Convention and the abolition of the death penalty

115. The Court takes as its starting point the nature of the right not to be subjected to the death penalty. Judicial execution involves the deliberate and premeditated destruction of a human being by the State authorities. Whatever the method of execution, the extinction of life involves some physical pain. In addition, the foreknowledge of death at the hands of the State must inevitably give rise to intense psychological suffering. The fact that the imposition and use of the death penalty negates fundamental human rights has been recognised by the member States of the Council of Europe. In the Preamble to Protocol No. 13 the Contracting States describe themselves as “convinced that everyone’s right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings”.

116. Sixty years ago, when the Convention was drafted, the death penalty was not considered to violate international standards. An exception was therefore included to the right to life, so that Article 2 § 1 provides that“[n]o one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”. However, as recorded in the explanatory report to Protocol No. 13, there has subsequently been an evolution towards the complete de facto and de jure abolition of the death penalty within the member States of the Council of Europe… Protocol No. 6 to the Convention, which abolishes the death penalty except in respect of “acts committed in time of war or of imminent threat of war”, was opened for signature on 28 April 1983 and came into force on 1 March 1985. Following the opening for signature of Protocol No. 6, the Parliamentary Assembly of the Council of Europe established a practice whereby it required States wishing to join the Council of Europe to undertake to apply an immediate moratorium on executions, to delete the death penalty from their national legislation and to sign and ratify Protocol No. 6. All the member States of the Council of Europe have now signed Protocol No. 6 and all save Russia have ratified it.

117. In October 1997 the Council of Europe Heads of State and Government called for the “universal abolition of the death penalty”… Resolution II adopted at the European Ministerial Conference on Human Rights on 3 to 4 November 2000 invited the Committee of Ministers “to consider the feasibility of a new additional protocol to the Convention which would exclude the possibility of maintaining the death penalty in respect of acts committed in time of war or of imminent threat of war”. Protocol No. 13, which abolishes the death penalty in all circumstances, was opened for signature on 3 May 2002 and came into force on 1 July 2003. At the date of adoption of the present judgment, Protocol No. 13 has been ratified by forty-two member States and signed but not ratified by a further three (Armenia, Latvia and Poland). Azerbaijan and Russia are alone in not having signed the Protocol. It was signed by the United Kingdom on 3 May 2002, ratified on 10 October 2003 and came into force in respect of that State on 1 February 2004.

118. The Court considers that, in respect of those States which are bound by it, the right under Article 1 of Protocol No. 13 not to be subjected to the death penalty, which admits of no derogation and applies in all circumstances, ranks along with the rights in Articles 2 and 3 as a fundamental right, enshrining one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed (…).

(b) The effect of signature and ratification of Protocol No. 13 on the interpretation of Articles 2 and 3 of the Convention

119. In Öcalan… the Court examined whether the practice of the Contracting States could be taken as establishing an agreement to abrogate the exception in Article 2 § 1 permitting capital punishment in certain conditions. It noted, with reference to § 103 of the Soering judgment (cited above), that if Article 2 were to be read as permitting capital punishment, Article 3 could not be interpreted as prohibiting it, since that would nullify the clear wording of Article 2 § 1. The Grand Chamber in Öcalan (§ 163) agreed on this point with the Chamber, which had held as follows: (…)1

Having thus concluded that the use of the death penalty except in time of war had become an unacceptable form of punishment, the Grand Chamber in Öcalan went on to examine the position as regards capital punishment in all circumstances: (…)2

120. It can be seen, therefore, that the Grand Chamber in Öcalan did not exclude that Article 2 had already been amended so as to remove the exception permitting the death penalty. Moreover, as noted above, the position has evolved since then. All but two of the member States have now signed Protocol No. 13 and all but three of the States which have signed it have ratified it. These figures, together with consistent State practice in observing the moratorium on capital punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances. Against this background, the Court does not consider that the wording of the second sentence of Article 2 § 1 continues to act as a bar to its interpreting the words “inhuman or degrading treatment or punishment” in Article 3 as including the death penalty (compare Soering… §§ 102-04).

121. In accordance with its constant case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In considering whether a punishment or treatment was “degrading” within the meaning of Article 3, the Court will have regard to whether its object was to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (…).

122. Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one of the fundamental values of democratic societies. It makes no provision for exceptions and no derogation from it is permissible under Article 15, even in the event of a public emergency threatening the life of the nation. As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim’s conduct, the nature of any offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 (…).

European standards

► Y.P. and I.P. v. France, Application No. 32476/06, 2 September 2010

71. For its part, the Court points out that even after several years of absence, the applicant might still be at risk; the passage of time cannot be determinative of the risk to the applicant without a corresponding assessment of the current policies of the Belarus authorities… § 145). As the Court has already underlined, while the recent resolution by the Parliamentary Assembly of the Council of Europe noted some positive developments with regard to democracy, including the release of political prisoners, it did not propose the restoration of Belarus’s special guest status for the time being and noted the obstacles in this connection, the most serious of which are failure to abolish the death penalty and ongoing harassment of the opposition (…).3

► Kasymakhunov and Saybatalov v. Russia, Application No. 26261/05, 14 March 2013

109. Nor are the changes in the legal and constitutional structures of the State proposed by Hizb ut-Tahrir compatible with the fundamental democratic principles underlying the Convention. The Court notes that the regime which Hizb ut-Tahrir plans to set up after gaining power is described in detail in its documents. An analysis of these documents reveals that Hizb ut-Tahrir proposes to establish a regime which rejects political freedoms, such as, in particular, freedoms of religion, expression and association, declaring that they are contrary to Islam. For example, Hizb ut-Tahrir intends to introduce capital punishment for apostasy from Islam and to ban all political parties which are not based on Islam (…).

► Al Nashiri v. Poland, Application No. 28761/11, 24 July 2014

577. Judicial execution involves the deliberate and premeditated destruction of a human being by the State authorities. Whatever the method of execution, the extinction of life involves some physical pain. In addition, the foreknowledge of death at the hands of the State must inevitably give rise to intense psychological suffering. The fact that the imposition and use of the death penalty negates fundamental human rights has been recognised by the member States of the Council of Europe. In the Preamble to Protocol No. 13 the Contracting States describe themselves as “convinced that everyone’s right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings” (…).

► Khamtokhu and Aksenchik v. Russia [GC], Application No. 60367/08, 24 January 2017

73. The Court has on numerous occasions indicated that the Convention is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today… The Court has also pointed out that any interpretation of the rights and freedoms guaranteed has to be consistent with the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic state… As a consequence, the concepts of inhuman and degrading treatment and punishment have evolved considerably since the Convention came into force in 1953. Progress towards the complete de facto and de jure abolition of the death penalty within the member States of the Council of Europe is an illustration of this ongoing evolution. The territories encompassed by the member States of the Council of Europe have become a zone free of capital punishment and the Court has accepted that exposing an applicant to a real risk of being sentenced to death and executed elsewhere may give rise to an issue under Article 3 of the Convention (see Soering v. the United Kingdom… Al-Saadoon and Mufdhi v. the United Kingdom… §§ 115-18 and 140-43… and A.L. (X.W.) v. Russia… §§ 63-66…).

REQUIREMENT OF A FAIR TRIAL

► Soering v. the United Kingdom [P], Application No. 14038/88, 7 July 1989

113. The right to a fair trial in criminal proceedings, as embodied in Article 6 (art. 6), holds a prominent place in a democratic society… The Court does not exclude that an issue might exceptionally be raised under Article 6 (art. 6) by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. However, the facts of the present case do not disclose such a risk.

Accordingly, no issue arises under Article 6 § 3 (c) (art. 6-3-c) in this respect.

► Hulki Güneş v. Turkey, Application No. 28490/95, 19 June 2003

85. Having regard, nonetheless, to the particular circumstances of the case, in particular the severity of the applicant’s sentence (the death penalty, commuted to life imprisonment), to the fact that the main evidence which led the court to impose that sentence was disputed by the applicant, and to the conclusion it has reached under Article 3 of the Convention, the Court considers in the instant case that it must proceed with its assessment of the applicant’s complaint that his trial was unfair for reasons unrelated to the question of the status of members of the national security courts. Only in this way will it be able to examine the substance of the applicant’s main allegation that the charges against him (in particular, that of having taken part in an armed attack on 14 June 1992) could not have been found to have been made out if he had had a fair trial (…)

94. Having regard to the foregoing and to the reasoning of the National Security Court in applying Article 125 of the Criminal Code… the Court is in no doubt that the applicant’s conviction was based on the statements of the gendarmes who had identified him, obtained at two stages of the proceedings – during the investigation and on commission – with neither the applicant nor his lawyer present.

95. As to whether the applicant or his lawyer could have applied to the courts delegated to take evidence for permission to attend the examination of the witnesses in question and whether the defendant could have been confronted with them, the Court reiterates, firstly, that the waiver of a right guaranteed by the Convention – in so far as such a waiver is permissible – must be established in an unequivocal manner… It further notes that although the applicant repeatedly and clearly asked for the confrontation to take place before the trial court… it does not appear from the file that that court took the necessary steps to ensure that the witnesses in question could be examined or could appear before it… Furthermore, a request to the courts delegated to take evidence might also have been refused on road-safety grounds.

In any event, as the witnesses in question did not appear before the trial court, the judges were unable to observe their demeanour under questioning and thus form their own impression of their reliability… Admittedly, they undertook a careful examination of the statements taken from the witnesses on commission and gave the applicant an opportunity to contest them, but this can scarcely be regarded as a proper substitute for direct examination and attendance.

96. Accordingly, the statements in issue formed the fundamental basis for the conviction, yet neither at the stage of the investigation nor during the trial was the applicant able to examine or have examined the witnesses concerned. The lack of any confrontation before the trial court deprived him in certain respects of a fair trial. The Court is fully aware of the undeniable difficulties of combating terrorism – in particular with regard to obtaining and producing evidence – and of the ravages caused to society by this problem, but considers that such factors cannot justify restricting to this extent the rights of the defence of any person charged with a criminal offence. In short, there has been a violation of Article 6 §§ 1 and 3 (d).

► Mamatkulov and Askarov v. Turkey [GC], Application No. 46827/99, 4 February 2005

84. The applicants submitted that they had no prospect of receiving a fair trial in their country of origin and faced a real risk of being sentenced to death and executed. They argued in that connection that the Uzbek judicial authorities were not independent of the executive. (…)

89. The Court notes that in the instant case the applicants were handed over to the Uzbek authorities on 27 March 1999. On 28 June 1999 the Supreme Court of the Republic of Uzbekistan found Mr Mamatkulov and Mr Askarov guilty of various offences and sentenced them to twenty and eleven years’ imprisonment respectively (…).

90. The Court considers that, like the risk of treatment proscribed by Article 2 and/ or Article 3, the risk of a flagrant denial of justice in the country of destination must primarily be assessed by reference to the facts which the Contracting State knew or should have known when it extradited the persons concerned. When extradition is deferred following an indication by the Court under Rule 39, the risk of a flagrant denial of justice must also be assessed in the light of the information available to the Court when it considers the case (…).

91. The applicants were extradited to Uzbekistan on 27 March 1999. Although, in the light of the information available, there may have been reasons for doubting at the time that they would receive a fair trial in the State of destination, there is not sufficient evidence to show that any possible irregularities in the trial were liable to constitute a flagrant denial of justice within the meaning of paragraph 113 of Soering, cited above. Turkey’s failure to comply with the indication given by the Court under Rule 39 of the Rules of Court, which prevented the Court from obtaining additional information to assist it in its assessment of whether there was a real risk of a flagrant denial of justice, will be examined below with respect to Article 34.

Consequently, no violation of Article 6 § 1 of the Convention can be found.

► Öcalan v. Turkey [GC], Application No. 46221/99, 12 May 2005

(b) Unfair proceedings and the death penalty

(i) Under Article 2

166. As regards the reference in Article 2 of the Convention to “the execution of a sentence of a court”, the Grand Chamber agrees with the Chamber’s reasoning…:

“… Since the right to life in Article 2 of the Convention ranks as one of the most fundamental provisions of the Convention – one from which there can be no derogation in peacetime under Article 15 – and enshrines one of the basic values of the democratic societies making up the Council of Europe, its provisions must be strictly construed (see, mutatis mutandis, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A No. 324, pp. 45-46, § 147), a fortiori the second sentence of Article 2 § 1.

… Even if the death penalty were still permissible under Article 2, the Court considers that an arbitrary deprivation of life pursuant to capital punishment is prohibited. This flows from the requirement that ‘ [e] veryone’s right to life shall be protected by law’. An arbitrary act cannot be lawful under the Convention (see Bozano, cited above, p. 23, § 54, and pp. 25-26, § 59).

… It also follows from the requirement in Article 2 § 1 that the deprivation of life be pursuant to the‘execution of a sentence of a court’, that the‘court’ which imposes the penalty be an independent and impartial tribunal within the meaning of the Court’s case-law (see Incal, cited above; Çıraklar, cited above; Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I; and Hauschildt v. Denmark, judgment of 24 May 1989, Series A No. 154), and that the most rigorous standards of fairness be observed in the criminal proceedings both at first instance and on appeal. Since the execution of the death penalty is irreversible, it can only be through the application of such standards that an arbitrary and unlawful taking of life can be avoided (see, in this connection, Article 5 of ECOSOC Resolution 1984/50 and the decisions of the United Nations Human Rights Committee…; also Advisory Opinion OC-16/99 of 1 October 1999 of the Inter-American Court of Human Rights on‘The right to information on consular assistance in the framework of the guarantee of due process of law’, §§ 135-36, and Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago, § 148…). Lastly, the requirement in Article 2 § 1 that the penalty be‘provided by law’means not only that there must exist a basis for the penalty in domestic law but that the requirement of the quality of the law be fully respected, namely that the legal basis be ‘accessible’ and ‘foreseeable’ as those terms are understood in the case-law of the Court (see Amann v. Switzerland [GC], No. 27798/95, § 56, ECHR 2000-II, and Rotaru v. Romania [GC], No. 28341/95, § 52, ECHR 2000-V).

… It follows from the above construction of Article 2 that the implementation of the death penalty in respect of a person who has not had a fair trial would not be permissible.”

(ii) Under Article 3

167. The above conclusion concerning the interpretation of Article 2 where there has been an unfair trial must inform the opinion of the Court when it considers under Article 3 the question of the imposition of the death penalty in such circumstances.

168. As the Court has previously noted in connection with Article 3, the manner in which the death penalty is imposed or executed, the personal circumstances of the condemned person and a disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution, are examples of factors capable of bringing the treatment or punishment received by the condemned person within the proscription under Article 3 (see Soering… § 104).

169. In the Court’s view, to impose a death sentence on a person after an unfair trial is to subject that person wrongfully to the fear that he will be executed. The fear and uncertainty as to the future generated by a sentence of death, in circumstances where there exists a real possibility that the sentence will be enforced, must give rise to a significant degree of anguish. Such anguish cannot be dissociated from the unfairness of the proceedings underlying the sentence which, given that human life is at stake, becomes unlawful under the Convention.

(iii) Application of these principles to the present case

170. The Court notes that there has been a moratorium on the implementation of the death penalty in Turkey since 1984 and that in the present case the Government complied with the Court’s interim measure indicated pursuant to Rule 39 to stay the execution. It is further noted that the applicant’s file was not sent to Parliament for approval of the death sentence, as was then required by the Turkish Constitution. 171. The Court has also had regard, in this context, to Çınar… in which the Commission rejected a claim that Article 3 had been violated in the case of an applicant who had been sentenced to death in Turkey. In its reasoning, the Commission took into account the long-standing moratorium on the death penalty and concluded in the circumstances of that case that the risk of the penalty being implemented was illusory.

172. The Grand Chamber agrees with the Chamber that the special circumstances of the instant case prevent it from reaching the same conclusion as that reached in Çınar. The applicant’s background as the founder and leader of the PKK, an organisation that had been engaged in a sustained campaign of violence causing many thousands of casualties, had made him Turkey’s most wanted person. In view of the fact that the applicant had been convicted of the most serious crimes existing in the Turkish Criminal Code and of the general political controversy in Turkey – prior to the decision to abolish the death penalty – surrounding the question of whether he should be executed, it is not possible to rule out the possibility that the risk that the sentence would be implemented was a real one. In practical terms, the risk remained for more than three years of the applicant’s detention in İmralı, from the date of the Court of Cassation’s judgment of 25 November 1999 affirming the applicant’s conviction until the Ankara National Security Court’s judgment of 3 October 2002 commuting the death penalty to which the applicant had been sentenced to imprisonment.

173. As to the nature of the applicant’s trial, the Court refers to its conclusions on the applicant’s complaints under Article 6 of the Convention. It has found that the applicant was not tried by an independent and impartial tribunal within the meaning of Article 6 § 1 and that there has been a breach of the rights of the defence under Article 6 § 1 taken in conjunction with Article 6 § 3 (b) and (c), as the applicant had no access to a lawyer while in police custody and was unable to communicate with his lawyers out of the hearing of officials, restrictions had been imposed on the number and length of his lawyers’ visits to him, he was unable to consult the case file until an advanced stage of the proceedings, and his lawyers did not have sufficient time to consult the file properly.

174. The death penalty has thus been imposed on the applicant following an unfair procedure which cannot be considered to conform to the strict standards of fairness required in cases involving a capital sentence. Moreover, he had to suffer the consequences of the imposition of that sentence for nearly three years.

175. Consequently, the Court concludes that the imposition of the death sentence on the applicant following an unfair trial by a court whose independence and impartiality were open to doubt amounted to inhuman treatment in violation of Article 3 of the Convention.

► Bader and Kanbor v. Sweden, Application No. 13284/04, 8 November 2005

43. The Court notes from the outset that the applicants have not pursued under the Convention their initial submission before the Swedish immigration authorities that the first applicant had been exposed to torture before leaving Syria and risked being subjected to such treatment were he to be sent back there. The Court will not examine that matter of its own motion. It will accordingly limit its examination to the applicants’ complaint that there is a real risk that the first applicant will be executed if he is deported to Syria, since he has been sentenced to death under an enforceable judgment.

44. In this regard, the Court attaches particular weight to the fact that, according to a judgment of 17 November 2003 by the Regional Court in Aleppo, the first applicant was convicted, in absentia, of complicity in a murder and sentenced to death under Article 535 § 1 of the Syrian Criminal Code. The authenticity of the judgment has been confirmed by the Swedish embassy in Syria. The Court further stresses that, although it might not necessarily be a common occurrence, the death sentence for serious crimes is enforced in Syria.