The Death Penalty in the OSCE Area The conflict between the application of the death penalty and the prohibition of torture is most evident in the growing number of regional and domestic opinions and decisions that have held the death penalty in all cases to constitute cruel, inhuman or degrading treatment or punishment, or even torture, regardless of the methods or circumstances of implementation, or the particular individuals upon whom it is imposed.32 The European Court of Human Rights (ECtHR), for example, citing various resolutions of the European human rights system, has held that the death penalty involves the deliberate and premeditated destruction of a human being by state authorities and that “whatever the method of execution, the extinction of life involves some physical pain; in addition, the foreknowledge of death at the hands of the State must inevitably give rise to intense psychological suffering.”33 In the case Al-Saadoon v. United Kingdom, the European Court came to the conclusion that the prohibition of torture includes the death penalty.34 Similarly, the African Commission on Human and Peoples’ Rights has consistently encouraged the abolition of the death penalty in Africa, expressing concerns that executions will constitute a violation of the provisions of the African Charter on Human and Peoples’ Rights (African Charter), specifically Article 4, which states that human beings are inviolable, with every human being entitled to respect for his life and the integrity of his person, and Article 5, which guarantees the right to respect of the dignity inherent in a human being and the prohibition of torture and cruel, inhuman or degrading treatment or punishment. Similarly, a significant number of domestic courts have held that the death penalty per se violates the prohibition of torture and other ill-treatment, including the South African Constitutional Court,35 the Canadian Supreme Court,36 and the Constitutional Courts of Albania, Hungary, Lithuania, and Ukraine.37 These decisions are consistent with the abolition of the death penalty in a number of states in the United States based on the argument that the death penalty itself constitutes an extreme form of physical and psychological suffering, thereby violating the prohibition of torture and other ill-treatment. This evolving standard, along with the resulting illegality of the death penalty under the concepts of human dignity and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, is developing into a norm of customary law, 32  Special Rapporteur 2012, Op. Cit., note 6, para. 66; see also Manfred Nowak, Is the Death Penalty an Inhuman Punishment?, Jurisprudence of Human Rights Law – A comparative and interpretive approach, eds. Turku, Finland: Institute for Human Rights, Abo Akademi Univ. (2000). 33 See Al-Saadoon v. United Kingdom, application No. 61498/08, para. 115 (2010), <http://hudoc.echr.coe.int/ eng?i=001-97575#{“itemid”:[“001-97575”]}>. 34  Ibid., para. 120. 35  Constitutional Court of the republic of South Africa, The State v. Makwanyane, 1995 SA no. CCT/3/94 (1995), <http://www.constitutionalcourt.org.za/Archimages/2353.PDF>. 36  Supreme Court of Canada, United States v. Burns, [2001] S.C.R. 283, 289 (Can.), <http://scc-csc.lexum.com/ scc-csc/scc-csc/en/item/1842/index.do>. 37  Öcalan v. Turkey, op. cit., note 19, para. 159. 13