Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

136 | PRACTITIONERS GUIDE No. 6
prohibition of cruel, inhuman or degrading treatment or punishment
can also enter into play in cases of transfer with risk of imposition of the
death penalty as “the imposition of a death sentence on a person after
an unfair trial is to subject that person wrongfully to the fear that he/
she will be executed in violation of article 7 [ICCPR].” 427 Furthermore,
the Committee has found that execution by gas asphyxiation did not
meet the test of “least possible physical and mental suffering”, and was
in violation of Article 7 ICCPR. 428
The European Court of Human Rights has regularly found violations of
Article 3 ECHR (freedom from torture and inhuman or degrading treatment
or punishment) in cases of refoulement to face the death penalty,
especially where the penalty would be preceded by time on death
row. 429 However, it has also considered such expulsions a violation of
the right to life, enshrined in Article 2 ECHR. Thus, it has stated that “in
circumstances where there are substantial grounds to believe that the
person in question, if extradited, would face a real risk of being liable
to capital punishment in the receiving country, Article 2 implies an obligation
not to extradite the individual”. 430 Even more strongly, the Court
has considered that, “if an extraditing State knowingly puts the person
concerned at such high risk of losing his life as for the outcome to
be near certainty, such an extradition may be regarded as “intentional
deprivation of life”, prohibited by Article 2 of the Convention”. 431
The European Court has recently stated that, “in respect of those States
which are bound by it, the right under Article 1 of Protocol No. 13 not to
be subjected to the death penalty, which admits of no derogation and
applies in all circumstances, ranks along with the rights in Articles 2
and 3 as a fundamental right, enshrining one of the basic values of the
democratic societies making up the Council of Europe.” 432 Moreover, the
Court has suggested that the high level of ratification of Protocol 13, as
well as State Practice in observing the moratorium on capital punishment
“are strongly indicative that Article 2 has been amended so as to
prohibit the death penalty in all circumstances.” 433
As to when the death penalty will involve inhuman and degrading treatment
or punishment, the European Court has specified that “[t]he man-
427 Kwok Yin Fong v. Australia, CCPR, op. cit., fn. 347, para. 9.4.
428 Ng v. Canada, CCPR, op. cit., fn. 426, para. 16.4.
429 Al-Sadoon and Mufti v. United Kingdom, ECtHR, op. cit., fn. 391, para. 137.
430 Kaboulov v. Ukraine, ECtHR, Application No. 41015/04, Judgment of 19 November 2009.
431 Ibid., para. 99.
432 Al-Sadoon and Mufti v. United Kingdom, ECtHR, op. cit., fn. 391, para. 118. 42 of the 47 Council
of Europe Member States have ratified Protocol 13, and another three have signed it thereby
engaging not to act in a way that defeats the object and purpose of the treaty until ratification
(Vienna Convention on the Law of Treaties (VCLT), Vienna, 23 May 1969, Article 18).
433 Ibid., para. 120.