European Court Issues Strongest Decision Ever on the Death Penalty

Yesterday, a Chamber of the European Court of Human Rights issued its judgment in the Al Saddoon and Mufhdi case. The two applicants were represented by the courageous English human rights lawyer (and very dear personal friend) Phil Shiner. The Chamber found that the United Kingdom had imposed mental suffering upon the applicants sufficient to violate article 3 of the European Convention on Human Rights because it exposed them to the threat of capital punishment. Al Saddoon and Mufhdi were in fact surrendered by the British to the Iraqi’s, where they were subject to proceedings that might have had the death penalty as an ultimate result. The Chamber noted that the applicants, who are of course still in custody of the Iraqi authorities, continue to remain under threat of capital punishment.
The Court’s decision was based exclusively on the prohibition of ‘inhuman and degrading treatment’. The Court found it unnecessary to rule specifically on article 2 of the Convention (the right to life) and Protocol No. 13, to which the United Kingdom is a party. Signalling the elements of its own progressive interpretation of the Covnention, the Chamber said:

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 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…

Finally! This was the struggle that Nigel Rodley and Amnesty International began during the Soering case, more than twenty years ago.
It is too early to say whether this case will go to the Grand Chamber of the European Court, or whether it will be left to become a final judgment.