The European Regional System 2 Prior to the entry into force of Protocol No. 13, the Court used an indirect method to bring the death penalty within the scope of Article 3. One of the leading cases is Soering v UK,358 in which the finding of a violation was motivated not by the actual imposition of the death penalty, but rather by the conditions under which the applicant would be held on death row. The Court noted that “for any prisoner condemned to death, some elements of delay between the imposition and execution of the sentence and the experience of severe stress in conditions necessary for strict incarceration are inevitable.”359 Yet, it held that certain factors could bring this sanction within the scope of Article 3:360 “Having regard to the very long period of time spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant’s extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3.”361 In other words, whilst the death penalty was a lawful sanction, and remains so for those States which have not ratified Protocols No. 6 and 13, in certain circumstances the “manner in which it is imposed or executed, the personal circumstances of the condemned person and a disproportionality to the gravity of the crime committed, as well as conditions of detention awaiting execution” could amount to a violation of Article 3.362 Thus the Court held in Öcalan v Turkey,363 which was decided before the entry into force of Protocol No. 13, that “the imposition of the death sentence on the applicant following an unfair trial by a court whose independence and impartiality were open to doubt amounted to inhuman treatment in violation of Article 3.”364 2.3.2.2 Corporal punishment One of the cases that established the Court’s approach to the issue of corporal punishment is Tyrer v UK (discussed earlier). Despite the arguments raised on behalf of the Isle of Man that judicial corporal punishment was not in breach Soering v UK (1989), op. cit. Ibid. §111 360 Note that it may also come within the scope of Article 2. 361 Soering v UK (1989), op. cit., §111. See also the HRC decision Pratt and Morgan v Jamaica (1986), op. cit. 362 Soering v UK (1989), op. cit., §104. 363 Öcalan v Turkey, no. 46221/99, judgement of 12 March 2003. 364 Ibid, §175. 358 359 76