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

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 137
ner in which [the death penalty] is imposed or executed, the personal
circumstances of the condemned person and a disproportionality to the
gravity of the crime committed, as well as the conditions of detention
while awaiting execution, are examples of factors capable of bringing
the treatment or punishment received by the condemned person within
the proscription under Article 3 [. . .] as a general principle, the youth of
the person concerned is a circumstance which is liable, with others, to
put in question the compatibility with Article 3 of measures connected
with a death sentence [. . .].” 434
The Inter-American Commission on Human Rights found that sending
back asylum-seekers to face a risk of being killed subsequent to their
attempt to seek asylum abroad constituted a violation of their right to
life under Article I of the American Declaration on Rights and Duties
of Man. 435 This principle also applies to migrants, who are not asylum-seekers
stricto sensu, but who risk summary, arbitrary or extrajudicial
execution in their country of destination. The obligation also
arises when the person to be sent has been intercepted on the high
seas and returned to the country of departure. 436
e) The death row phenomenon
On the “death row phenomenon”, the Human Rights Committee has
stated that “prolonged periods of detention under a severe custodial
regime on death row cannot generally be considered to constitute cruel,
inhuman or degrading treatment if the convicted person is merely
availing himself of appellate remedies.” 437 In each particular case, “the
Committee will have regard to the relevant personal factors regarding
the author, the specific conditions of detention on death row, and
whether the proposed method of execution is particularly abhorrent.” 438
In Soering v. United Kingdom, the European Court of Human Rights
defined its view on the death row phenomenon: “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. A further
consideration of relevance is that in the particular instance the legiti-
434 Shamayev and Others v. Georgia and Russia, ECtHR, Application No. 36378/02, Judgment
of 12 April 2005, para. 333.
435 Haitian Interdictions Case, IACHR, op. cit., fn. 46, para. 168.
436 Ibid., para. 169.
437 Kindler v. Canada, CCPR, op. cit., fn. 426, para. 15.2.
438 Ibid., para. 15.3; See also, Ng v. Canada, CCPR, op. cit., fn. 426, para. 16.1.