The Court concluded that the death sentence imposed following an unfair trial would cause the applicant and his family additional fear and anguish as to their future if they were forced to return to the Syrian Arab Republic and, accordingly, would give rise to a violation of articles 2 and 3 referring to the prohibition of torture and cruel, inhuman or degrading treatment of the European Convention. In Ocalan v.
Turkey , the European Court held that the fear and uncertainty about the future generated by a death sentence, when a real possibility existed that the sentence would be enforced, inevitably caused strong human anguish. Such anguish could not be disassociated from the unfairness of the proceedings underlying the sentence, which, given that human life was at stake, became unlawful under the Convention. Consequently, the imposition of the death sentence following an unfair trial by a court whose independence and impartiality were open to doubt was held to amount to inhuman treatment, in violation of article 3 of the European Convention.
The death penalty cannot be applied for crimes committed by persons under 18 years of age. In Michael Domingues v. United States , the Inter-American Commission canvassed international legal and political developments and State practice concerning the execution of juveniles and reached the conclusion that the state of international law had evolved so as to prohibit, as a jus cogens norm, the execution of persons who were under 18 years of age at the time of committal of their crimes.
This is in line with the jurisprudence of the Human Rights Committee. In Roper v. Simmons , the United States Supreme Court held that under the evolving standards of decency test, it was cruel and unusual punishment to execute a person who was under the age of 18 years at the time of the murder. The abolition of the death penalty for juveniles is based on the fact that their limited capacity has a direct impact on their effectively benefiting from the right to a fair trial and that it is inherently cruel to execute children and would therefore amount to a violation of the prohibition of torture and cruel, inhuman and degrading treatment.
Article 4, paragraph 5, of the American Convention on Human Rights prohibits the imposition of capital punishment on persons who, at the time the crime was committed, were over 70 years of age. The Commission on Human Rights also adopted several resolutions urging all States not to impose the death penalty on, or to execute, any person suffering from any form of mental disorder e.
The Human Rights Committee has stated that the reading of a death warrant for the execution of a mentally incompetent person is a violation of article 7 of the Covenant. In Atkins v. Virginia , the United States Supreme Court ruled that executing mentally disabled individuals violated the ban on cruel and unusual punishment and that the prohibition of such punishment should be interpreted in the light of the evolving standard of decency that marked the progress of a maturing society.
The reasoning for the prohibition of the death penalty in these cases is the same as that for juveniles and children. It is inherently cruel to execute pregnant women, nursing mothers, elderly persons and persons with mental disabilities and it leads to a violation of the prohibition of torture and cruel, inhuman and degrading treatment.
Not only is the enforcement of the death penalty in these cases considered a violation per se of the prohibition of torture and cruel, inhuman and degrading treatment and punishment but the related State practice has led to the emergence of a jus cogens provision regarding the execution of juveniles. Some fundamental human rights standards, such as the prohibition of torture, are a norm of customary international law. The prohibition is non-derogable even in times of emergency and, in addition, is an imperative norm in international law that no State is allowed to ignore jus cogens.
The Statute of the International Court of Justice defines international customary law as evidence of a general practice accepted as law Art. This is generally determined through two factors: the general practice of States and what States have accepted as law opinio juris. States are typically bound by international customary law regardless of whether they have codified such law domestically or through treaties. Evidence for both aspects, State practice and opinio juris, is found in the signature and ratification of treaties, in public statement of policy, in votes on resolutions of political organs etc.
Discussed below is whether a customary rule against the death penalty is emerging or has emerged.
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A growing concern at the irreconcilable conflict between the legally imposed death penalty and the infliction of torture or cruel, inhuman or degrading treatment or punishment is evident even where some organs of protection have hesitated to pronounce accordingly. Canada of the Human Rights Committee, dissenting opinions show resounding disapproval of the majority's attempt to make a distinction among various methods of execution, because the death penalty as such constitutes cruel, inhuman and degrading treatment, regardless of how it is carried out.
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In his partly dissenting opinion to the decision in the case Ocalan v. Turkey , Judge Lech Garlicki stated that article 3 had been violated because any imposition of the death penalty represented 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 represented a violation of article 3 of the European Convention seemed to him to stop short of addressing the real problem.
He drew attention to the opinion of the Parliamentary Assembly of the Council of Europe in which it recalled that, in its most recent resolutions, it had reaffirmed its beliefs that the application of the death penalty constituted inhuman and degrading punishment and a violation of the most fundamental right, that to life itself, and that capital punishment had no place in civilized, democratic societies governed by the rule of law.
Judge Garlicki stated that, in consequence, the only question that remained was whether the Court had the power to state the obvious truth, namely, that capital punishment had become an inhuman and degrading punishment per se. United Kingdom that judicial execution involved the deliberate and premeditated destruction of a human being by the State authorities and that, whatever the method of execution, the extinction of life involved some physical pain.
In addition, the Court held: that 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 negated fundamental human rights had been recognized; and that in the preamble to Protocol No. It therefore could be stated that the European Court, by referring not only to the destruction of a human being but to the physical pain and moreover the intense psychological suffering that the foreknowledge of death gives rise to, acknowledged that the death penalty constituted also a violation of the prohibition of torture and cruel, inhuman and degrading treatment.
In addition, on 26 June , the Parliamentary Assembly of the Council of Europe adopted resolution on the promotion by member States of an international moratorium on the death penalty, in which it confirmed that the death penalty was the ultimate form of cruel, inhuman and degrading punishment. At the national level, a first and prominent attempt to consider the death penalty as cruel, inhuman or degrading treatment was made by United States Supreme Court Justice Brennan in his dissenting opinion to the judgement in Gregg v. Georgia He stated that the fatal constitutional infirmity in the punishment of death was that it treated members of the human race as non-humans, as objects to be toyed with and discarded.
It was thus inconsistent with the fundamental premise of the clause on prohibition of cruel and unusual punishment , and that even the vilest criminal remained a human being possessed of common human dignity. He emphasized that foremost among the moral concepts recognized in the cases before the Court and inherent in the clause was the primary moral principle that the State, even as it punished, must treat its citizens in a manner consistent with their intrinsic worth as human beings, and that a punishment must not be so severe as to be degrading to human dignity.
A significant number of courts of last instance and constitutional courts have found that the death penalty per se violates the prohibition of cruel, inhuman or degrading punishment. Makwanyane and Mchunu held that the death penalty was contrary to the prohibition by the South African Constitution of cruel, inhuman or degrading treatment. Burns considered capital punishment to amount to cruel and unusual punishment. The Court stated that in Canada, the death penalty had been rejected as an acceptable element of criminal justice, and that capital punishment engaged the underlying values of the prohibition against cruel and unusual punishment.
Furthermore, the Constitutional Courts of Albania, Hungary, Lithuania and Ukraine have found that the death penalty per se violates the prohibition of cruel, inhuman and degrading treatment. The President of Mongolia justified the abolition of capital punishment by referring to the degrading character of the death penalty. Denmark was also firmly convinced that the death penalty was brutal, inhumane and an affront to human integrity and human dignity, no matter how cruel the offence. Similarly, Slovenia considers that the death penalty constitutes cruel, inhuman and degrading treatment and a violation of international law.
This is a result of the execution itself, as well as the cruelty in forcing the convicted person to wait on death row, often for many years, contemplating execution. Spain considers the death penalty as cruel and inhumane treatment and as an unacceptable violation of human dignity and integrity. Italy in its remarks on the question of the death penalty in April stated that it considered the death penalty to be inhuman.
An increasing number of national constitutional courts and political instances have pronounced their conviction that the death penalty is a cruel, inhuman and degrading treatment not reconcilable with the inherent right to physical and mental integrity and human dignity. It can be said, therefore, that there is an evolving standard whereby States and judiciaries consider the death penalty to be a violation per se of the prohibition of torture or cruel, inhuman or degrading treatment.
A review of precedents to determine the existence of such a norm as an already established custom is beyond the capacity of the present report. Nevertheless, the Special Rapporteur is convinced that a customary norm prohibiting the death penalty under all circumstances, if it has not already emerged, is at least in the process of formation.
The evolving practice of States shows a clear trend towards abolition of the death penalty. Even in retentionist countries, practices and opinions have changed. Significantly, the trend to abolish and the trend to restrict are both informed by a stated conviction that capital punishment is cruel, inhumane and degrading, either per se or as applied.
To date, the death penalty has been treated under the provisions concerning the right to life, and therein as an exception provided for by international law. A new approach is needed as there is evidence of an evolving standard within international bodies and a robust State practice to frame the debate about the legality of the death penalty within the context of the fundamental concepts of human dignity and the prohibition of torture and cruel, inhuman or degrading treatment or punishment.
This evolving standard, along with the resulting illegality of the death penalty under such prohibition, is developing into a norm of customary law, if it has not already done so. The Special Rapporteur finds that even if the emergence of a customary norm that considers the death penalty as per se running afoul of the prohibition of torture and cruel, inhuman or degrading treatment is still under way, most conditions under which capital punishment is actually applied renders the punishment tantamount to torture.
Under many other, less severe conditions, it still amounts to cruel, inhuman or degrading treatment. The prohibition of torture and cruel, inhuman or degrading treatment and the strict adherence to safeguards constitute absolute limits on the use and enforcement of the death penalty.
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It may still be theoretically possible to impose and execute the death penalty without running afoul of the absolute prohibition of torture and cruel, inhuman or degrading treatment, but the rigorous conditions that States must apply for that purpose make the retention of capital punishment not worth the effort.
Even with such conditions, States cannot guarantee that in all cases the prohibition of torture will be scrupulously adhered to. Death by stoning or gas asphyxiation is already clearly prohibited under international law. Furthermore, there is no categorical evidence that any method in use today can be said to comply with the prohibition of torture and cruel, inhuman or degrading treatment. The death row phenomenon is a violation of article 7 of the International Covenant on Civil and Political Rights, and of article 1 or article 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, depending on the length of isolation and severity of conditions.
The anxiety created by the threat of death and the other circumstances surrounding an execution, inflicts great psychological pressure and trauma on persons sentenced to death. A prolonged stay on death row, along with the accompanying conditions, constitutes a violation of the prohibition of torture itself.
The Special Rapporteur calls upon all States to reconsider whether the use of the death penalty per se respects the inherent dignity of the human person, causes severe mental and physical pain or suffering and constitutes a violation of the prohibition of torture or cruel, inhuman or degrading treatment. He recommends a more comprehensive legal study on the emergence of a customary norm prohibiting the use of the death penalty under all circumstances.
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