A/67/279
66. 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. In the case Ng v. Canada (1993) 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. 50
67. In his partly dissenting opinion to the decision in the case Ocalan v. Turkey
(2005), 51 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 2002 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.
68. Five years later, the European Court held in the case Al-Saadoon and Mufdhi v.
United Kingdom (2010) 52 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. 13 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms, the Contracting
States had described themselves as convinced that the abolition of the death penalty
was essential for the full recognition of the inherent dignity of all human beings. 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 2007, the
Parliamentary Assembly of the Council of Europe adopted resolution 1560 on the
promotion by member States of an international moratorium on the death penalty, in
__________________
50
51
52
18
Human Rights Committee, communication No. 469/1991. See also Manfred Nowak, “Is the death
penalty an inhuman punishment?”, in The Jurisprudence of Human Rights Law: A comparative
and interpretive approach, Theodore S. Orlin, Allan Rosas and Martin Scheinin eds. (Turku,
Finland: Institute for Human Rights, Abo Akademi University, 2000).
Judgement of 12 May 2005 in Ocalan v. Turkey, Application No. 46221/99.
Judgement of 2 March 2010 in Al-Saadoon and Mufdhi v. United Kingdom, Application No. 61498/08,
para. 115.
12-45812
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