Monday, 4 October 2010

Victory on Death Penalty at European Court of Human Rights

Today, the European Court of Human Rights refused to authorize the reconsideration of the Al Saadoon and Mufdhi  v. UK case by the Grand Chamber. That means that the decision by a Chamber of the Court of last March is final and authoritative. Public Interest Lawyers, and my good friend Phil Shiner, deserve great credit for this. They have issued a celebratory press release.
I too am thrilled at the result, but perhaps a bit disappointed that the Grand Chamber will not have a chance to review the reasoning of the Chamber on this one. The Chamber concluded that the current practice in Europe on capital punishment means that the second sentence of article 2(1) of the European Convention on Human Rights is, in effect, considered to be no longer operative. With that I agree wholeheartedly. This is the phrase that preserves capital punishment as an exception to the right to life.
From there, the Chamber might then have concluded that without an express exception, the death penalty should be considered a violation of the right to life, which is protected by article 2. However, the Chamber takes a different route, and concludes that the death penalty would then constitute a violation of article 3, as 'inhuman or degrading punishment'. On close reading of its decision, however, the judges of the Chamber do not say that it is the death penalty that constitutes inhuman or degrading punishment, but rather than agony of a convicted person thinking about the penalty. I remain very troubled by this approach to the issue. Many prisoners suffer while thinking about their penalties, even relatively minor ones. It seems inherent in the idea of punishment. It should be the death penalty itself, and not thinking about it, that constitutes a violation of the Convention.
On the other hand, we can hope that today's ruling means that the European Court of Human Rights will never again have to consider the issue of capital punishment.


Lallands Peat Worrier said...

A phrase of Tom Paine's always struck me as an apt way of expressing the Court's curious logic what is wrong with the death penalty in Soering and beyond.

Of Burke, Paine wrote (aptly enough in the Rights of Man) that "He pities the plumage, but forgets the dying bird."

Sean said...

Dear prof. Schabas,

An interesting article showing that some people have been less fortunate with respect to capital punishment.