European Court of Human Rights Death Penalty Decision Raises Difficult Issues

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:

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 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.

The Chamber then goes on to consider whether in fact the prohibition on ‘inhuman or degrading treatment or punishment’ set out in article 3 of the Convention prohibits the death penalty. It is necessary to point out that the two applicants have not yet been sentenced to death; they are only exposed to the possibility. The Chamber held that ‘there were substantial grounds for believing that they would run a real risk of being sentenced to death if tried and convicted by an Iraqi court’ (para. 135). Consequently,

136. The applicants must themselves have been aware of this risk. The Court considers that, at least from May 2006, when the Iraqi criminal courts accepted
jurisdiction over their cases, the applicants were subjected to a well-founded fear of execution. It is reasonable to assume that this fear caused the applicants intense psychological suffering. It must have continued throughout their appeals to the Iraqi courts against the referral of their cases to the IHT (see paragraph 47 above) and the refusal of the English domestic courts to prevent their physical transfer to the Iraqi authorities. It undoubtedly intensified around 31 December 2008, when the risk became more concrete and the transfer took place, and continues to this day.

Moreover, ‘the applicants' well-founded fear of being executed by the Iraqi authorities during the period May 2006 to July 2009 must have given rise to a significant degree of mental suffering and that to subject them to such suffering constituted inhuman treatment within the meaning of Article 3 of the Convention’ (para. 137).
I am intrigued and a bit puzzled by the decision. Obviously, I concur with the result. But the reasoning is perplexing. The inhuman treatment is not the imposition of the death penalty itself, but rather the ‘psychological suffering’ or ‘mental suffering’ inflicted upon the applicants by their exposure to capital punishment. It seems to be extending the reasoning in Soering to encompass unconvicted persons who are threatened with capital punishment, and not just those who have been sentenced to death and are actually on death row.
Would it not have been better to declare the death penalty as such to be inhuman (or degrading) treatment, rather than to focus on the psychological suffering of the accused person? The Court seems only to have surmised that the applicants were subject to such suffering. There does not seem to have been any real evidence of this. What of the accused person who confronts the death penalty with courage, and who claims not to be suffering? Does someone with a martyr complex who welcomes capital punishment not qualify?
Moreover, does the logic of this finding apply to someone exposed to another form of harsh penalty? Presumably an innocent person charged with an offence goes through intense ‘psychological suffering’ at the prospect of going to prison for a crime he or she did not commit. Does this too violate article 3 of the Convention?
Members of the Council of Europe outlawed the death penalty, through Protocols 6 and 13, because the penalty itself is inhuman and degrading, and not because of the mental suffering of those who are exposed to it. It is inhuman and degrading for a society to kill another human being as a form of punishment. This is what makes the death penalty contrary to article 3.