The Death Penalty in the OSCE Area–Background Paper 2019 most fundamental right, that to life itself, and that capital punishment has no place in civilized democratic societies governed by the rule of law.”20 Moreover, as Justice Chaskalson noted there is the problem of what has become known as the “death row phenomenon”.21 The European Court found in a landmark decision Soering v. United Kingdom that the death row phenomenon as practised in the State of Virginia in the United States of America violated the prohibition of cruel, inhuman and degrading treatment.22 The Human Rights Committee noted in its General Comment No. 36 that extreme delays in implementing a death penalty sentence “may also entail the violation of article 7 of the Covenant, especially when the long time on death row exposes sentenced persons to harsh or stressful conditions, including, solitary confinement […]”23 Around the world, but perhaps especially starkly within some parts of the OSCE region, there are also concerns about the discriminatory nature of the impact of the death penalty, which has a bearing both on its arbitrariness (Article 6) and the animus underlying cruel or inhuman treatment (Article 7), as well as Articles 2 (1) and 26 of the ICCPR. In its General Comment No. 36 the Human Rights Committee noted that “Data suggesting that members of religious, racial or ethnic minorities, indigent persons or foreign nationals are disproportionately likely to face the death penalty may indicate an unequal application of the death penalty, which raises concerns under article 2 (1) read in conjunction with Article 6, as well as under article 26.”24 To return to my report to the UN General Assembly in 2016, I noted that the vast majority of States have moved away from the death penalty, if not in law (although more than half have done so), then at least in practice (80 per cent have now abolished it in law or in practice). I, therefore, pointed out that “Whereas retentionist States could in the past have argued that there was strong State practice to justify the use of the death penalty as a limitation on the right to life, that argument 20  PACE, Opinion 233, Draft Protocol to the European Convention on Human Rights concerning the abolition of the death penalty in all circumstances, January 2002, <http://semantic-pace.net/tools/pdf.aspx?doc=aHR0cDovL2Fzc2VtYmx5LmNvZS5pbnQvbncveG1sL1hSZWYvWDJILURXLWV4dHIuYXNwP2ZpbGVpZD0xNjk2NiZsYW5nPUVO&xsl=aHR0cDovL3NlbWFudGljcGFjZS5uZXQvWHNsdC9QZGYvWFJlZi1XRC1BVC1YTUwyUERGLnhzbA==&xsltparams=ZmlsZWlkPTE2OTY2>. 21  See “The Death Penalty in the OSCE Area: Background Paper 2016”, op. cit., note 3, p. 20: “The phenomenon refers to a combination of circumstances that produce severe mental trauma and physical suffering in prisoners awaiting their execution in death row, including prolonged periods waiting for uncertain outcomes, solitary confinement, poor prison conditions, and a lack of educational and recreational activities.” 22  European Court of Human Rights, Judgement of 7 July 1989 in Soering v. United Kingdom, Application No. 14038/88, Series A, No. 161, para. 111. 23  General Comment No. 36, op. cit., note 10, para. 40. 24  Ibid., para. 44. 11