THE DEATH PENALTY

Human rights protectionECHR case studies

Alison RileyLegal English Course

The implementation of a legal and ethical principle:

– Can the State decide legitimately to deprive a person of his life?

– What is your view?

Amnesty International 2009Report on the death penalty

• Decapitation• Firing squad/shooting• Hanging • Lethal injection• Stoning • Electric chair

At least 714 people were

put to death using these methods

At least 2001 people were condemned to death in 56 countries

(Plus China, where data is kept

secret)

AI 2009 report

• "The death penalty is cruel and degrading, and an affront to human dignity,"

said Claudio Cordone, Amnesty International's Interim Secretary General.

• "The Chinese authorities claim that fewer executions are taking place. If this is true, why won't they tell the world how many people the state put to death?"

AI statistics 2009

• In addition to China, the worst offending nations were:– Iran: at least 388

executions– Iraq: at least 120– Saudi Arabia: at least

69 – USA: 52

• In 2009 capital punishment was applied extensively to send political messages:– to silence opponents– to promote political

agendas in China, Iran and Sudan

AI report 2009: discrimination• The report addresses the

discriminatory way the death penalty was applied in 2009:

• after grossly unfair trials

• The death penalty was used disproportionately against:

– the poor– minorities– members of racial,

ethnic and religious communities

AI statistics 2010• No stonings were reported in 2010 (but stoning

sentences were reported in Nigeria, Pakistan, Iran)

• In addition to China, the worst offending nations were:– Iran: 252 executions– North Korea: 60– Yemen: 53 – USA: 46

• At least 527 executions, down on 2009 (714)

The death sentence: an irreversible penalty

ENGLANDDerek Bentley – a teenager of 19

Crime: murder (1953)

Facts: his friend (16) shot a policeman dead. They were committing a crime together.

Capital punishment: hanging

1998 - after 45 years Court of Appeal: conviction “unsafe”

Derek Bentley was NOT GUILTY of murder

R v. DEREK WILLIAM BENTLEY (Deceased)

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice The Strand,

London WC2A 2LL

Thursday 30th July 1998

B E F O R E:

THE LORD CHIEF JUSTICE OF ENGLAND

(Lord Bingham of Cornhill)

The judge misdirected the jury.New evidence was assessed including medical and school reports.

Held: the conviction was unsafe and quashed.

Not presented at trial

• Clear evidence of:– serious educational and behavioural

problems– impairment of intellectual and cognitive

functionthat would affect the appellant's understanding,

his judgment and his memoryConsider: MENS REA / culpability

• http://netk.net.au/UK/Bentley.asp

U.S. Constitution

• The VIIIth Amendment prohibits: ‘cruel and unusual punishment

The death penalty is not per se ‘cruel and

unusual punishment’. But States must follow strict safeguards

» Case of Gregg v Georgia

• ‘The electric chair’ ‘frying in a chair’?

The right to life

Article 2 ECHR – Right to life (1950)

1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

Paragraph 1: the death penalty is an exception to the right to life

Paragraph 2: other exceptions are envisaged: self-defence, lethal force in case of arrest, escape, riot.

Right to life Prohibition of torture

Articolo 3 ECHR Prohibition of torture

« No one shall be subjected to torture or to inhuman or degrading treatment or punishment. »

European Court of Human Rights, Strasbourg:« The Court must also recall that the Convention is a living

instrument, which … must be interpreted in the light of present-day conditions. … the Court [is] influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe … » Tyrer case, 25 April 1978

The death penalty in the UK

• No ‘Bill of Rights’

• Regulated by legislation

• In the past: many capital crimes

• 20th century – most serious crimes:– Murder, treason, piracy

Abolition of the death penaltyUK

• Murder (Abolition of Death Penalty) Act 1965 – Abolished death penalty for murder – Imposed a mandatory sentence of life imprisonment

• Crime and Disorder Act 1998:– Abolished the death penalty for:

treason, piracy with violence– Last crimes punishable with the death penalty in the

UK

Public opinion and opinion polls

• Could the death penalty be reintroduced in Britain? – Parliamentary sovereignty– No ‘fundamental’ laws– And international obligations?

• And in Italy?

• Why could it be reintroduced?• Public opinion: emotional reactions?• Fear and anxiety about public safety• Political manipulation (instead of dealing with the causes of

criminality)

Abolition in Europe: ECHR1) PROTOCOL No. 6 ECHR CONCERNING THE ABOLITION OF THE DEATH

PENALTY Strasbourg, 28.IV.1983

Abolishes the death penalty in peacetime Ratified by 46 Council of Europe member States Russian Federation signed (but did not ratify)

2) Protocol No. 13 (ECHR/CEDU) concerning the abolition of the death penalty in all circumstances Vilnius, 3.V.2002

Abolishes the death penalty in all circumstances, including war or imminent threat of war:

Ratified by 42 Council of Europe member States Armenia, Latvia, Poland sign but do not ratify, Russian Federation does

not sign

Protocol No. 13 (ECHR/CEDU) concerning the abolition of the death penalty in all circumstances

Vilnius, 3.V.2002The member States of the Council

of Europe signatory hereto, • Convinced that everyone’s right to life is a

basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings …

Have agreed as follows:

• Article 1 – Abolition of the death penalty

• The death penalty shall be abolished. No one shall be condemned to such penalty or executed.

Les Etats membres du Conseil de l’Europe, signataires du présent Protocole,

• Convaincus que le droit de toute personne à la vie est une valeur fondamentale dans une société démocratique, et que l’abolition de la peine de mort est essentielle à la protection de ce droit et à la pleine reconnaissance de la dignité inhérente à tous les êtres humains ….

Sont convenus de ce qui suit:

• Article 1 – Abolition de la peine de mort

• La peine de mort est abolie. Nul ne peut être condamné à une telle peine ni exécuté.

The case of Soering v UK7 July 1989 ECtHR

• Facts: – brutal murder of Mr and Mrs Haysom in Virginia, USA

(parents of Elizabeth)– Killer: Jens Soering (German), girlfriend Elizabeth present

and implicated in the homicide.

• Events:– Soering and Elizabeth flee– Arrested for fraud in England– Elizabeth sentenced to 90 years’ imprisonment – USA requests extradition of Soering to Virginia– Soering challenges extradition– In Virginia he would risk the death penalty

ECtHR: Soering v UK ‘Death row’ phenomenonviolates article 3 ECHR

• ‘Death row’ phenomenon in breach of Art. 3 ECHR– Average: from 6 to 8 years on death row– Extreme conditions– Growing anguish as the prisoner awaits execution

• The Court considers: – Soering was only 18 when he committed murder– Possible psychiatric condition– Possible alternative: extradition to Germany

Extradition of Soering to the USA would constitute a violation of Article 3 by the UK (the extraditing State)

ECtHR Strasbourg evolution in the case law

• 2 March 2010• Case of Al-Saadoon and Mufdhi v UK• Basra, Iraq: murder of 2 British soldiers• Detained by British authorities

• Can they be handed over to Iraqi authorities for trial?

• They risk the death penalty

2010 Court’s conclusions The death penalty, involving the deliberate

and premeditated destruction of a human being by State authorities, causing physical pain and intense psychological suffering as a result of the foreknowledge of death, constitutes inhuman treatment violation of Article 3

Protocols + State practice “are strongly indicative that Article 2 has

been amended so as to prohibit the death penalty in all circumstances.” (para. 120)

Charter of Fundamental Rights of the European UnionNice, 7.XII.2000

CAPO IDIGNITÀArticolo 1

Dignità umanaLa dignità umana è inviolabile. Essa

deve essere rispettata e tutelata.

KAPITEL IWÜRDE DES MENSCHEN

Artikel 1Würde des Menschen

Die Würde des Menschen ist unantastbar. Sie ist zu achten und zu schützen.

CHAPITRE IDIGNITÉ

Article premierDignité humaine

La dignité humaine est inviolable. Elle doit être respectée et protégée.

CHAPTER 1DIGNITYArticle 1

Human dignityHuman dignity is inviolable. It must be

respected and protected.

Right to life Nice Charter

Articolo 2Diritto alla vita

1. Ogni individuo ha diritto alla vita.2. Nessuno può essere condannato

alla pena di morte, né giustiziato.

Artikel 2Recht auf Leben

(1) Jede Person hat das Recht auf Leben.

(2) Niemand darf zur Todesstrafe verurteilt oder hingerichtet werden.

Article 2Droit à la vie

1. Toute personne a droit à la vie.2. Nul ne peut être condamné à la

peine de mort, ni exécuté.

Article 2Right to life

1. Everyone has the right to life.2. No one shall be condemned to the

death penalty, or executed.

Death Penalty in 2010: Executing countries left isolated after decade of progress

28 March 2011

• Countries which continue to use the death penalty are being left increasingly isolated following a decade of progress towards abolition, Amnesty International has said today in its new report

“Death Sentences and Executions in 2010”

AI Report 2010

• A total of 31 countries abolished the death penalty in law or in practice during the last 10 years but China, Iran, Saudi Arabia, the USA and Yemen remain amongst the most frequent executioners, some in direct contradiction of international human rights law.

Suggested websites• www.coe.int Council of Europe

• http://europa.eu - European Union• www.parliament.uk - UK Parliament

• www.opsi.gov.uk - UK legislation

• http://www.amnesty.org/en/death-penalty/ratification-of-international-treaties Amnesty International (human rights: death penalty – international treaties)