European Court of Human Rights Death Penalty Decision Raises Difficult Issues

Linked with Irish Centre for Human Rights, with International Law Association, and with Irish Centre for Human Rights 2010 Summer Schools. – Published on PhD studies in human rights, by William A. Schabas, April 6, 2010.

It has been about a month since a Chamber of the European Court of Human Rights issued its ruling in the Al Saddoon and Mufdhi v. United Kingdom case. The judgment was posted on this blog, along with a brief comment on its significance. In effect, the Court went beyond its previous precedents to declare the death penalty contrary to the European Convention on Human Rights, despite the express terms of article 2(1) which contemplates capital punishment as an exception to the right to life. Of course, the death penalty no longer exists on the territory of the Council of Europe.

The case involved the transfer by British military forces in Iraq of two individuals to the Iraqi authorities where they were exposed to capital punishment. En passant, congratulations are in order to Phil Shiner, who took the case to the Court.

A bit of background. In Soering v. United Kingdom, in 1989, the Court held that article 2(1) of the Convention was not implicitly amended by article 3 (inhuman and degrading treatment or punishment) so as to prohibit capital punishment. It said that extradition to the United States would violate the Convention not because of the death penalty as such, but because the applicant would be exposed to prolonged incarceration on death row (the ‘death row phenomenon’).

The Grand Chamber returned to these issues in Öcalan v. Turkey, in 2005, where it toyed with taking interpretation of the Convention a step further but ultimately held itself back. In last month’s ruling, the Chamber discussed Ocalan: … (full text).

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