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
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