3rd World Congress against the Death Penalty
THE DEATH PENALTY: INHUMAN, CRUEL AND DEGRADING TREATMENT
By and large, anyone who is condemned to death must endure to a greater or lesser extent terrible conditions on what is known as “death row”. Moreover, he will more often than not be almost totally physically and emotionally isolated. This amounts to an enormous psychological burden, particularly as regards the unbearable wait for execution.
In addition to this, the human imagination knows no bounds in dreaming up methods to execute those sentenced to death. These different forms of execution, in their various guises, all seem cruel, whether it involves a bullet in the head, stoning, hanging, lethal injection or the electric chair.
In this context, can conditions of detention be called inhuman, cruel and degrading treatment in the same way as executions? Does this argument have any legal weight in international law to be used by abolitionists such as ourselves?
We must remember that in international law the death penalty is not itself considered to be inhuman treatment. The International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) do not ban the death penalty in those States that have not ratified the additional protocols (Protocol II of the ICCPR and Protocols 6 & 13 of the ECHR).
The United Nations Human Rights Committee (UNHRC), the Inter-American Court of Human Rights (ICHR) and the European Court of Human Rights (ECHR) have come to the conclusion that the death penalty does not in itself constitute an inhuman and degrading punishment in breach of Articles 7 of the ICCPR, 5 of the American Convention on Human Rights (ACHR) and 3 of the ECHR on torture.
However, although international law does not recognise the cruel, inhuman and degrading character of the death penalty itself, the reality is quite different. The death penalty exposes those on whom it is imposed to a lengthy legal procedure, with an uncertain outcome and to anguish and torment and then robs them of their humanity. This reality and its consequences, as inevitable as they are integral to the death penalty, can clearly be seen as amounting to cruel treatment.
Back in 1977, in the Stockholm Declaration, those countries participating in the International Conference on the Abolition of the Death Penalty organised by Amnesty International stated that “the death penalty is the cruellest and most inhuman and degrading punishment that exists and violates the right to life”.
This premise has been progressively developed in case law in
regional Courts (within the
- in “death row syndrome”;
- the practise of certain methods of execution.
I – “DEATH ROW SYNDROME”
“Death row syndrome” is the traumatic stress imposed on a prisoner by having to wait on prison wings set aside for those sentenced to death.
A – The European context
In its judgement Soering v
“For any prisoner condemned to death, some element of delay between
imposition and execution of the sentence and the experience of severe stress in
conditions necessary for strict incarceration are inevitable. The democratic
character of the
However, in the Court’s view, 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 (art. 3). A further consideration of relevance is that in the particular instance the legitimate purpose of extradition could be achieved by another means which would not involve suffering of such exceptional intensity or duration”.
This is thus contrary to Article 3 of the ECHR that states that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
“Accordingly, the Secretary
of State’s decision to extradite the applicant to the
This case law was confirmed by the ECHR on numerous occasions. In the judgement Jabari v
In the judgement of
In line with the principle laid down in 1989 in the judgement Soering v United Kingdom and since adopted in numerous decisions by the ECHR, States must request firm assurances from the United States and other countries where the death penalty is in force that those individuals who are to be extradited or deported will not be sentenced to death.
This principle has already been applied by the jurisdictions of many
It was incorporated in the Guidelines on Human Rights and the fight
against Terrorism, voted in by the Council of Ministers on
A similar measure was included in the Protocol amending the European Convention on the Suppression of
Terrorism of 1977, opened to signatures on
B – The Context of the
Several judgements of the ICHR have incorporated “death-row syndrome” in line with the ECHR.
Thus in the cases of Cantoral Benavidesand Hilaire, Constantine, Benjamin and others v Trinidad and Tobago, in 2000 and 2002 respectively, the ICHR considered that the fact of leaving person sentenced to death to await execution, deprived of means of communication, isolated in a small unventilated cell with no natural light and subject to visiting restrictions clearly constitutes inhuman and degrading treatment.
C – The International Context (UNO)
1 – UN Commission on Human Rights (and Human Rights Council)
The United Nations Commission on Human Rights that was replaced by the Human Rights Council set out that “the abolition of the death penalty is fundamental to protect [the] right [to life]” (Resolution 2005/59 of 20 April 2005).
On a regular basis, it has adopted successive resolutions on the death penalty in which it requests States in particular “to check that when the death penalty is handed down, it must be carried out in such a way as to cause the minimum suffering possible must not be enforced in public or in any degrading way and that particularly cruel or inhuman means of execution, such as stoning, are stopped immediately”
The recently instituted UN Human Rights Council recognised that abolition is also essential to protect another fundamental Human Right: the right not to suffer any cruel, inhuman or degrading punishment. When a country abolishes the death penalty, it recognises the fact that the State must not execute any prisoner and that prisoners are human beings like anyone else who cannot be deprived of their basic rights.
It is to be hoped that the decision to abolish the death penalty will be followed by other progress as regards the treatment of prisoners, especially abolishing other cruel, inhuman and degrading punishments such as amputation or flogging.
2 – UN Human Rights Committee
The UNHRC is more reserved about “death row syndrome”.
By way of principle in a piece of entrenched case law, it believes that “prolonged detention, in harsh conditions on death row does not in itself constitute cruel, inhuman or degrading treatment, unless there are other overriding circumstances, if detention is due to the fact that the prisoner is invoking his right of appeal”.
It believes that “incarceration is a necessary consequence of handing down a death penalty, however cruel, degrading and inhuman it may seem”.
Moreover, the UNHRC refuses to consider time as a determining factor in proving a violation of the ICCPR in order to prevent States that have abolished the death penalty from concluding that an execution should take place as quickly as possible after a sentence has been handed down.
It believes that an extended wait on death row does not constitute a violation of Article 7 of the ICCPR (especially if it is linked to exhausting all possibilities of an appeal) even if it lasts a long time.
It is only if “overriding circumstances” surrounding the detention are proven that it can be said that the ICCPR has been violated:
- So being held in an insalubrious cell without natural light or ventilation and without a mattress or bedding for 23 hours a day and without adequate medical care has been deemed to be contrary to respecting human dignity and a violation of Article 10 of the ICCPR.
- The same is true if a detainee’s mental health deteriorates during detention and he is not given adequate access to care.
- Or if the detainee is held for 21 hours a day and for more than 10 years without books or other pastimes.
In addition, the UNHRC takes into consideration the psychological effects of incarceration on the individual.
So informing a person who is sentenced to death of the decision to stay his execution a mere 45 minutes before the set time for execution when the decision had been taken 20 hours previously constitutes cruel and inhuman treatment as set out in Article 7 of the ICCPR.
II – EXECUTION METHODS
In order to determine when a death sentence constitutes inhuman or degrading treatment, the UNHRC, like the ECHR, examines the personal circumstances of the detainee and the particular conditions of his detention on death row.
It also considers that the method of execution can in itself constitute inhuman or degrading treatment.
On the contrary, execution by asphyxiating gas constitutes a “particularly horrible” form of execution according to the Committee and therefore violates Article 7 of the ICCPR.
The question begs of the definition of
what constitutes “particularly horrible”
treatment. In its General Comment 20
For a Federation of organisations for the abolition of the death penalty, such as the International Federation of Christians against Torture (FIACAT), this case law from the UNHRC can appear surprising.
Why? Because whilst trying to limit human rights violations it runs the risk of becoming a justification of the death penalty providing it is carried out in a way that is not horrible. The answer could do more wrong than good and run contrary to the abolitionist stance. This would clearly be counterproductive.
Of course, it is vital that the death penalty in itself be declared illegal in international law and that it be simply banned. That is the objective we must hold fast to and work towards without wavering.
But when all is said and done it is interesting to consider the death penalty in international law as constituting inhuman and degrading treatment even if this is insufficient in itself (because there is a risk of justifying the death penalty providing it is not applied in an inhuman fashion).
In fact it constitutes a step on the road to universal abolition in the same way as the moratorium does. The experiences of the last few years have shown that a “step by step” policy is in fact more willingly accepted by States and that a policy consisting of progressive stages is one way of guaranteeing that a more limited death penalty is progressively instituted and that a ban can often be better accepted by the population at large.
This is something that other speakers will now go on to explain by illustrating how they are experiencing this in their own countries.
Sylvie BUKHARI – de PONTUAL
President of FIACAT
 ECHR, Soering v
 ECHR, Jabari v
 ECHR, Ocalan v
 See above
 ICHR, Cantoral Benavides,
 ICHR, Hilaire, Benjamin and
 UNHRC, Lavende v Trinidad and Tobago, 29 October 1997, 554/1993; Errol Johnson v Jamaica, 22 March 1996, 588/1994; Martin v Jamaica, 22 March 1993, 317/1988; Barrett and Sutcliffe v Jamaica, 30 March 1992, 270/1988 and 225/1987.
 UNHRC, Errol Johnson v
 UNHRC, Nathaniel Williams v
 UNHRC, Hervin Edwards v
 UNHRC, Pratt and Morgan v
 UNHRC, Kindler v
 UNHRC, Keith Cox v
 In the
 UNHRC, Charles Chitat Ng v
 UNHRC, General Comment 20