Death penalty as such contrary to the European Convention on Human Rights
II. RELEVANT NATIONAL AND INTERNATIONAL LEGAL MATERIALS A. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949 (“the Fourth Geneva Convention”) 90. The Fourth Geneva Convention provides, inter alia : Article 27 “ Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion. However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war. ” Article 41 “ Should the Power, in whose hands protected persons may be, consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and 43. ... ” Article 42 “ The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be. ” Article 70 “ Protected persons shall not be arrested, prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation, or during a temporary interruption thereof, with the exception of breaches of the laws and customs of war. ... ” Article 77 “ Protected persons who have been accused of offences or convicted by the courts in occupied territory, shall be handed over at the close of occupation, with the relevant records, to the authorities of the liberated territory. ” Article 78 “ If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. ... ” B. The Geneva Conventions Act 1957 91. This statute was enacted to give effect in United Kingdom domestic law to the provisions of the 1949 Geneva Conventions. It provides, inter alia : “1(1) Any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of a grave breach of any of the scheduled conventions or the first protocol shall be guilty of an offence.” The term “grave breach” is defined in each of the four Geneva Conventions of 1949 and in Additional Protocol I as certain acts (including wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health, extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly, wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial) committed against “protected persons” ( as defined precisely in each Convention ), including prisoners of war, civilians and the wounded. C. Joint Doctrine Publications 2006 92. The purpose of the Ministry of Defence ’ s Joint Doctrine Publication (JDP ) 1-10 “Prisoners of War, Internees and Detainees” (May 2006) is as follows : “1. ... to provide high - level joint doctrinal guidance on how to deal with persons who fall into the hands of UK Armed Forces during military operations, whether Prisoners of War (PW), civilian internees or those detained as a result of suspected or actual criminal activity. 2. This Edition of JDP 1-10 is written primarily for the benefit of the United Kingdom operational Commander responsible for UK Forces ’ compliance with domestic United Kingdom law, international law and the Law of Armed Conflict (LOAC). It should prove useful to those involved in operational planning when the issues covered in this publication may arise. It is also intended to assist those responsible for all aspects of force protection and area security, personnel whose duties involve liaison with local civil authorities, UK Governmental Departments (Foreign and Commonwealth Office (FCO), Home Office, Department for International Development (DFID)), Non-Governmental Organisations (NGOs) and International Organisations (IOs), such as the International Committee of the Red Cross (ICRC).” Chapter 1 of JDP 1-10.3 “Detainees” (July 2006) concerns the handling of detainees. It commences by stating as follows (footnotes omitted): “101. UK Armed Forces may be empowered under the Host Nation ’ s (HN) law to participate in the arrest of criminal suspects or may be involved in the arrest of persons indicted for war crimes. This chapter details the arrangements for the handling of such persons when they are being temporarily detained by UK Armed Forces during military operations abroad that do not amount to International Armed Conflict. 102. Detainees are a category of prisoner distinct from PW and internees. Detainees are those individuals who, during operations abroad not amounting to International Armed Conflict, are held by UK Armed Forces because they have committed, or are suspected of committing, criminal offences. 103. Detainees are a category of prisoner who can only be held during operations other than International Armed Conflict. It should be noted that, during International Armed Conflict, those who have committed or are suspected of committing criminal offences are categorised and treated as internees. 104. The provisions for the handling of detainees will vary according to the national laws of the territory in which UK Forces are operating, the nature of the operation and the legal framework under which UK Forces are operating. This is a complex area and specialist staff and policy advice will invariably be called for at the earliest stages of planning. Detainees should be handed over to the appropriate local authorities at the earliest opportunity, provided that there is no reason to believe they will suffer abuses of their human rights .” Section IV of JDP 1-10.3 is entitled “Transfers” and states: “113. Except for their repatriation or return to their country of residence after the cessation of hostilities, detainees must not be transferred to a State that is not a party to the GCs [Geneva Conventions]. Moreover, they may only be transferred to a State that is a party if the detaining State has satisfied itself that the receiving State is willing and able to apply the GCs. In the event of transfers taking place, the receiving State becomes responsible for the application of the GCs. Should that State fail to carry out its obligations in any important respect, it is the duty of the State which made the transfer either to take effective measures to correct the situation or to request the return of the persons affected. ... In no circumstances may a detainee be transferred to a State where he has reason to fear persecution on account of his political opinions or religious beliefs. 114. It should be borne in mind that the application of the European Convention on Human Rights to those held in UK facilities in some circumstances may impose additional restrictions on their transfer, in particular if they are likely to be tried for an offence which carries the death penalty.” Section V of JDP 1-10.3 deals with “Handover to the Host Nation Authorities”. It provides : “116. Detainees must be handed over to the HN authorities as soon as practicable in order that detainees can be dealt with according to the local criminal justice system. ... 117. There may be cases where handover to the HN cannot take place immediately: a. If the HN lacks sufficient criminal justice infrastructure to take custody of the detainee, for example, courts, police, custodial facilities and lawyers. b. If there are reasonable grounds to suspect the handover would compromise the safety of the detainee.” D. “Diplomatic asylum” 93. Article 41 of the Vienna Convention on Diplomatic Relations of 1961 provides: “1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State. 2. All official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed. 3. The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.” 94. In R(B) v. Secretary of State for Foreign and Commonwealth Affairs, cited above, the Court of Appeal observed as follows: “In a case such as Soering the Contracting State commits no breach of international law by permitting an individual to remain within its territorial jurisdiction rather than removing him to another State. The same is not necessarily true where a State permits an individual to remain within the shelter of consular premises rather than requiring him to leave. It does not seem to us that the Convention can require States to give refuge to fugitives within consular premises if to do so would violate international law. So to hold would be in fundamental conflict with the importance that the Grand Chamber attached in Banković to principles of international law. Furthermore, there must be an implication that obligations under a Convention are to be interpreted, insofar as possible, in a manner that accords with international law. What has public international law to say about the right to afford ‘ diplomatic asylum ’? Oppenheim [Oppenheim ’ s International Law edited by the late Sir Robert Jennings QC and Sir Arthur Watts QC 9th edition vol 1 ] deals with this topic at paragraph 495, from which we propose to quote at a little length: ‘ Paragraph 495 : So-called diplomatic asylum The practice of granting diplomatic asylum in exceptional circumstances is of long-standing, but it is a matter of dispute to what extent it forms part of general international law. There would seem to be no general obligation on the part of the receiving State to grant an ambassador the right of affording asylum to a refugee, whether criminal or other, not belonging to this mission. Of course, an ambassador need not deny entrance to refugees seeking safety in the embassy. But as the International Court of Justice noted in the Asylum case ... in the absence of an established legal basis, such as is afforded by treaty or established custom, a refugee must be surrendered to the territorial authorities at their request and if surrender is refused, coercive measures may be taken to induce it. Bearing in mind the inviolability of embassy premises, the permissible limits of such measures are not clear. The embassy may be surrounded by soldiers, and ingress and egress prevented; but the legitimacy of forcing an entry in order forcibly to remove the refugee is doubtful, and measures involving an attack on the envoy ’ s person would clearly be unlawful. Coercive measures are in any case justifiable only in an urgent case, and after the envoy has in vain been requested to surrender the refugee. It is sometimes suggested that there is, exceptionally, a right to grant asylum on grounds of urgent and compelling reasons of humanity, usually involving the refugee ’ s life being in imminent jeopardy from arbitrary action. The practice of States has afforded instances of the grant of asylum in such circumstances. The grant of asylum ‘ against the violent and disorderly action of irresponsible sections of the population ’ is a legal right which, on grounds of humanity, may be exercised irrespective of treaty; the territorial authorities are bound to grant full protection to a diplomatic mission providing shelter for refugees in such circumstances. There is some uncertainty how far compelling reasons of humanity may justify the grant of asylum in other cases. The International Court ’ s judgment in the Asylum case suggests that the grant of asylum may be justified where ‘ in the guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims ’. However, the Court went on to emphasise that ‘ the safety which arises out of asylum cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals ’. Thus it would seem not to be enough to show that a refugee is to be tried for a ‘ political ’ offence: it must be shown that justice would be subordinated to political dictation and the usual judicial guarantees disregarded. Even where permissible, asylum is only a temporary expedient and may only be afforded so long as the reasons justifying it continue to subsist. ’ The propositions in Oppenheim are based, to a large extent, on what seem to be the only juridical pronouncements on the topic to carry authority. On 20 November 1950 the International Court of Justice gave judgment in a dispute between Colombia and Peru that the two States had referred to the Court – Asylum Case (Colombia v. Peru) (1950) ICJ Rep. 206. Colombia had given refuge in its embassy in Peru to the leader of a military rebellion, which had been almost instantaneously suppressed. At issue was the effect of two Conventions to which both Colombia and Peru were party which made provision in relation to the grant of asylum to political refugees but not to criminals. Colombia ’ s arguments included the contention that by customary international law it was open to Colombia unilaterally to determine that the fugitive fell to be classified as a political refugee. Much of the judgment related to the effects of the two Conventions, but the Court made some general comments in relation to ‘ diplomatic asylum ’ : ‘ The arguments submitted in this respect reveal a confusion between territorial asylum (extradition), on the one hand, and diplomatic asylum, on the other. In the case of extradition, the refugee is within the territory of the State of refuge. A decision with regard to extradition implies only the normal exercise of the territorial sovereignty. The refugee is outside the territory of the State where the offence was committed, and a decision to grant him asylum in no way derogates from the sovereignty of that State. In the case of diplomatic asylum, the refugee is within the territory of the State where the offence was committed. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of the State. Such a derogation from territorial sovereignty cannot be recognised unless its legal basis is established in each particular case. ’ In 1984 six fugitives who were subject to detention orders issued by the South African government sought refuge in the British Consulate in Durban. They became known as the Durban six. The British Government decided that it would not compel them to leave but that it would not intervene on their behalf with the South African authorities. They were told that they could not stay indefinitely and, eventually they left. Five of them were immediately arrested and charged with high treason, which carried the death penalty. We were referred to an Article in Human Rights Quarterly 11 (1989) by Susanne Riveles, which included the following propositions: ‘ There exists no universally accepted international agreement to assure a uniform response by States to grant refuge in a mission in an emergency. Most countries, with the exception of those in Latin America, deny outright the claim to diplomatic asylum because it encroaches upon the State ’ s sovereignty. Some countries give limited recognition to the practice, allowing ‘ temporary safe stay ’ on a case-by-case basis to persons under threat of life and limb. It should be recognised that a State has the permissible response of granting temporary sanctuary to individuals or groups in utter desperation who face repressive measures in their home countries. Moreover, this should be considered a basic human right, to be invoked by those fleeing from the persecution for reasons of race, religion, or nationality, or for holding a political opinion in an emergency situation involving the threat of violence. ’ Discussion We have concluded that, if the Soering approach is to be applied to diplomatic asylum, the duty to provide refuge can only arise under the Convention where this is compatible with public international law. Where a fugitive is facing the risk of death or injury as the result of lawless disorder, no breach of international law will be occasioned by affording him refuge. Where, however, the receiving State requests that the fugitive be handed over the situation is very different. The basic principle is that the authorities of the receiving State can require surrender of a fugitive in respect of whom they wish to exercise the authority that arises from their territorial jurisdiction; see Article 55 of the 1963 Vienna Convention. Where such a request is made the Convention cannot normally require the diplomatic authorities of the sending State to permit the fugitive to remain within the diplomatic premises in defiance of the receiving State. Should it be clear, however, that the receiving State intends to subject the fugitive to treatment so harsh as to constitute a crime against humanity, international law must surely permit the officials of the sending State to do all that is reasonably possible, including allowing the fugitive to take refuge in the diplomatic premises, in order to protect him against such treatment. In such circumstances the Convention may well impose a duty on a Contracting State to afford diplomatic asylum. It may be that there is a lesser level of threatened harm that will justify the assertion of an entitlement under international law to grant diplomatic asylum. This is an area where the law is ill-defined. So far as Australian law was concerned, the applicants had escaped from lawful detention under the provisions of the Migration Act 1958. On the face of it international law entitled the Australian authorities to demand their return. We do not consider that the United Kingdom officials could be required by the Convention and the Human Rights Act to decline to hand over the applicants unless this was clearly necessary in order to protect them from the immediate likelihood of experiencing serious injury.” E. Explanatory report to Protocol No. 13 to the Convention 95. At its meeting on 21 February 2002, the Committee of Ministers of the Council of Europe adopted the text of Protocol No. 13 to the Convention and authorised the publication of the following explanatory report (footnotes omitted): “1. The right to life, ‘ an inalienable attribute of human beings ’ and ‘ supreme value in the international hierarchy of human rights ’ is unanimously guaranteed in legally binding standards at universal and regional levels. 2. When these international standards guaranteeing the right to life were drawn up, exceptions were made for the execution of the death penalty when imposed by a court of law following a conviction of a crime for which this penalty was provided for by law (cf., for example, Article 2 § 1 of the ... Convention ...). 3. However, as illustrated below, there has since been an evolution in domestic and international law towards abolition of the death penalty, both in general and, more specifically, for acts committed in time of war. 4. At the European level, a landmark stage in this general process was the adoption of Protocol No. 6 to the Convention in 1982. This Protocol, which to date has been ratified by almost all States Parties to the Convention, was the first legally binding instrument in Europe – and in the world – which provided for the abolition of the death penalty in time of peace, neither derogations in emergency situations nor reservations being permitted. Nonetheless, under Article 2 of the said Protocol, ‘ A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war ’. However, according to the same Article, this possibility was restricted to the application of the death penalty in instances laid down in the law and in accordance with its provisions. 5. Subsequently, the Parliamentary Assembly established a practice whereby it required from States wishing to become a member of the Council of Europe that they committed themselves to apply an immediate moratorium on executions, to delete the death penalty from their national legislation, and to sign and ratify Protocol No. 6. The Parliamentary Assembly also put pressure on countries which failed or risked failing to meet the commitments they had undertaken upon accession to the Council of Europe. More generally, the Assembly took the step in 1994 of inviting all member States who had not yet done so, to sign and ratify Protocol No. 6 without delay (Resolution 1044 (1994) on the abolition of capital punishment). 6. This fundamental objective to abolish the death penalty was also affirmed by the Second Summit of Heads of State and Government of member States of the Council of Europe (Strasbourg, October 1997). In the Summit ’ s Final Declaration, the Heads of State and Government called for the ‘ universal abolition of the death penalty and [insisted] on the maintenance, in the meantime, of existing moratoria on executions in Europe ’. For its part, the Committee of Ministers of the Council of Europe has indicated that it ‘ shares the Parliamentary Assembly ’ s strong convictions against recourse to the death penalty and its determination to do all in its power to ensure that capital executions cease to take place ’. The Committee of Ministers subsequently adopted a Declaration ‘ For a European Death Penalty-Free Area ’. 7. In the meantime, significant related developments in other fora had taken place. In June 1998, the European Union adopted ‘ Guidelines to EU Policy Toward Third Countries on the Death Penalty ’ which, inter alia, state its opposition to this penalty in all cases. Within the framework of the United Nations, a Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, was adopted in 1989. For a few years, the UN Commission on Human Rights has regularly adopted Resolutions which call for the establishment of moratoria on executions, with a view to completely abolishing the death penalty. It should also be noted that capital punishment has been excluded from the penalties that the International Criminal Court and the International Criminal Tribunals for the Former Yugoslavia and Rwanda are authorised to impose. 8. The specific issue of the abolition of the death penalty also in respect of acts committed in time of war or of imminent threat of war should be seen against the wider background of the above-mentioned developments concerning the abolition of the death penalty in general. It was raised for the first time by the Parliamentary Assembly in Recommendation 1246 (1994), in which it recommended that the Committee of Ministers draw up an additional protocol to the Convention, abolishing the death penalty both in peace- and in wartime. 9. While the Steering Committee for Human Rights (CDDH), by a large majority, was in favour of drawing up such an additional protocol, the Committee of Ministers at the time considered that the political priority was to obtain and maintain moratoria on executions, to be consolidated by complete abolition of the death penalty. 10. A significant further step was made at the European Ministerial Conference on Human Rights, held in Rome on 3-4 November 2000 on the occasion of the 50th anniversary of the Convention, which pronounced itself clearly in favour of the abolition of the death penalty in time of war. In Resolution II adopted by the Conference, the few member States that had not yet abolished the death penalty nor ratified Protocol No. 6 were urgently requested to ratify this Protocol as soon as possible and, in the meantime, respect strictly the moratoria on executions. In the same Resolution, the Conference invited the Committee of Ministers ‘ to consider the feasibility of a new additional protocol to the Convention which would exclude the possibility of maintaining the death penalty in respect of acts committed in time of war or of imminent threat of war ’ ( paragraph 14 of Resolution II). The Conference also invited member States which still had the death penalty for such acts to consider its abolition (ibidem). 11. In the light of texts recently adopted and in the context of the Committee of Ministers ’ consideration of the follow-up to be given to the Rome Conference, the Government of Sweden presented a proposal for an additional protocol to the Convention at the 733rd meeting of the Ministers ’ Deputies (7 December 2000). The proposed protocol concerned the abolition of the death penalty in time of war as in time of peace. 12. At their 736th meeting (10-11 January 2001), the Ministers ’ Deputies instructed the CDDH ‘ to study the Swedish proposal for a new protocol to the Convention ... and submit its views on the feasibility of a new protocol on this matter ’. 13. The CDDH and its Committee of Experts for the Development of Human Rights (DH-DEV) elaborated the draft protocol and the explanatory report thereto in the course of 2001. The CDDH transmitted the draft protocol and explanatory report to the Committee of Ministers on 8 November 2001. The latter adopted the text of the Protocol on 21 February 2002 at the 784th meeting of the Ministers ’ Deputies and opened it for signature by member States of the Council of Europe on 3 May 2002.” F. The Parliamentary Assembly of the Council of Europe ’ s (PACE) Resolution 1560 96. On 26 June 2007 PACE adopted the following resolution on the “ Promotion by Council of Europe member States of an international moratorium on the death penalty ”: “1. The Parliamentary Assembly confirms its strong opposition to the death penalty in all circumstances. The death penalty is the ultimate form of cruel, inhuman and degrading punishment: it violates the right to life. The Assembly takes pride in its decisive contribution to making the member States of the Council of Europe a de facto death penalty-free zone, and strongly regrets the fact that one European country – Belarus – still carries out executions. 2. The Assembly has also on several occasions taken a strong stand against executions in other parts of the world, and in particular in the Council of Europe observer States which retain the death penalty, namely Japan and the United States of America. 3. It notes with satisfaction that the death penalty is on the decline worldwide, as shown by a 25% decrease in executions and death sentences between 2005 and 2006. 4. It also draws attention to the fact that more than 90% of known executions in 2006 took place in only six countries: China, Iran, Pakistan, Iraq, Sudan, and the United States of America – a Council of Europe observer State. Based on available public records, which may cause the number of executions to be underestimated in countries lacking free media or an accountable government, China alone accounts for more than two thirds of all executions worldwide. Iran ’ s execution rate nearly doubled from 2005 to 2006. Iraq also witnessed a dramatic increase in executions in 2006, bringing the number up to 65. Saudi Arabia, among the worst offenders in 2005, saw a decrease in 2006 to 39 executions, but witnessed an upsurge in early 2007 (48 executions through to the end of April). 5. The small number of countries that still resort to executions on a significant scale is becoming increasingly isolated in the international community. Between 1977 and 2006, the number of abolitionist countries rose from 16 to 89. This number increases to 129 when including those countries which have not carried out any executions for the past ten years or more and which can therefore be considered as abolitionist in practice. The time is now ripe to give new impetus to the campaign in favour of a death penalty-free world. 6. The Assembly therefore strongly welcomes Italian efforts in the United Nations General Assembly in advocating for a moratorium on the death penalty, as well as the support of the European Union for this initiative, and expects it to be proceeded with in such a manner as to guarantee the best possible success within the United Nations. 7. A moratorium on executions is but one step in the right direction, the ultimate goal remaining the complete abolition of the death penalty in all circumstances. 8. In the meantime, a moratorium is an important step as it saves lives immediately and has the potential of demonstrating to the public in retentionist countries that an end to State-sponsored killings does not lead to any increase in violent crime. On the contrary, a moratorium on executions can bring about a change of atmosphere in society fostering greater respect for the sanctity of human life, and thus contribute to reversing the trend towards ever-increasing hate and violence. 9. Finally, a universal moratorium on the death penalty represents a concrete and highly symbolic political act, which could help change an international climate which is all too often characterised by violent actions which take their victims – by no means exclusively in a context of conflict – from among civilian populations. A universal moratorium on the death penalty would also make a significant contribution to the establishment of a shared and operational body of principles and rules leading towards a more effective rule of law at international level. 10. The Assembly calls on all member and observer States of the Council of Europe to actively support the initiative for the abolition of the death penalty in the UN General Assembly and to make the best use of their influence in order to convince countries that are still on the sidelines to join in. In this context, it warmly welcomes the resolution in the same spirit, adopted by the European Parliament on 26 April 2007, on the initiative for a universal moratorium on the death penalty. 11. At the Luxembourg meeting of 18 June 2007, the General Affairs and External Relations Council (GAERC) of the European Union unanimously made a formal commitment to tabling – at the next session of the General Assembly of the United Nations – a resolution calling for a moratorium on executions all over the world. 12. The Assembly recalls that, whilst 60 States have so far ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), adopted by the UN General Assembly in 1989 to promote the universal abolition of the death penalty, 10 Council of Europe member and observer States have not yet done so, namely Albania, Armenia, France, Japan (observer), Latvia, Mexico (observer), Poland (signed but not ratified), the Russian Federation, Ukraine, and the United States of America (observer). For countries which have de facto and de jure abolished the death penalty (Albania, Armenia, France, Latvia, Mexico (observer), Poland and Ukraine), or which maintain a moratorium (Russian Federation), the ratification of the Second Optional Protocol to the ICCPR would be a valuable gesture of political support for abolition, and would contribute to further isolating the remaining retentionist countries. 13. The Council of Europe ’ s own instruments against the death penalty are also still lacking ratifications. In particular, Protocol No. 6 to the European Convention on Human Rights concerning the abolition of the death penalty (ETS No. 114) has still not been ratified by the Russian Federation, despite the commitment to do so undertaken upon its accession to the Council of Europe in 1996. Protocol No. 13 to the Convention concerning the abolition of the death penalty in all circumstances (ETS No. 187), including in time of war or imminent threat of war, has still not been signed by Azerbaijan and the Russian Federation, and has still not been ratified by Armenia, France, Italy, Latvia, Poland and Spain. For the sake of the strong and unified signal to be sent by the Council of Europe as a whole, the Assembly calls on the countries concerned to sign and ratify these instruments without further delay. 14. The Assembly notes in this context that Italy ’ s Chamber of Deputies approved on 2 May 2007, in a second reading, the constitutional bill containing amendments to Article 27 of the Constitution concerning the abolition of the death penalty; the bill is presently before the senate for its second reading and final adoption under the current procedure for constitutional revision. The bill aims to delete from Article 27 § 4 the following words: ‘ unless in the cases provided for by military laws in case of war ’, thus eliminating any reference to the death penalty in the Italian Constitution and making it possible to ratify Protocol No. 13 to the Convention. 15. Also, the Assembly reiterates its view, noted in Recommendation 1760 (2006) on the position of the Parliamentary Assembly as regards the Council of Europe member and observer States which have not abolished the death penalty, that the death penalty should be abolished in Abkhazia, South Ossetia and the Transnistrian Moldavan Republic, and that the sentences of all prisoners currently on death row in these territories should be immediately commuted to terms of imprisonment in order to put an end to the cruel and inhuman treatment of those who have been kept on death row for years in a state of uncertainty as to their ultimate fate. 16. The Assembly fully supports the Conference to establish a European Day against the Death Penalty, to be held in Lisbon on 9 October 2007, and expects all member States of the Council of Europe also to show their unstinting support. Given its pioneering work on the abolition of the death penalty in Europe and beyond, the Assembly must play a central role, including through involvement in the drafting of the joint declaration, which its President should co-sign at the inaugural conference. The Assembly will stand ready to contribute to publicity and promotion, including through coordination of supporting events in member States ’ national parliaments. ” G. Cases concerning the obligation on a sending State to make representations against the use of the death penalty by the receiving State after the transfer of an individual from its jurisdiction 97. In Chitat Ng v. Canada ( Communication No. 469/1991, UN Doc. CCPR/C/49/D/469/1991, 7 January 1994), the United Nations Human Rights Committee found that Mr Ng ’ s extradition to the United States of America, where he risked execution, gave rise to a violation by Canada of the International Covenant on Civil and Political Rights (ICCPR). The Committee made the following request : “18. The Human Rights Committee requests the State Party to make such representations as might still be possible to avoid the imposition of the death penalty and appeals to the State Party to ensure that a similar situation does not arise in the future.” 98. In Roger Judge v. Canada ( Communication No. 829/1998, UN Doc. CCPR/C/78/D/829/1998, 20 October 2003), the Committee found that Mr Judge ’ s deportation to the United States, where he had been sentenced to be executed, gave rise to violations by Canada of the ICCPR, and continued: “12. Pursuant to Article 2 § 3 (a) of the Covenant, the Committee concludes that the author is entitled to an appropriate remedy which would include making such representations as are possible to the receiving State to prevent the carrying out of the death penalty on the author.” 99. In its judgment of 11 October 2002 in Boumediene and Others, the Human Rights Chamber for Bosnia and Herzegovina found a number of violations of the Convention arising from the transfer of the claimants, who had been detained in Bosnia and Herzegovina, to the custody of the US security services who subsequently removed them to the US Naval Base at Guantánamo Bay. The Human Rights Chamber then ordered Bosnia and Herzegovina, inter alia, to take all possible steps to prevent the death penalty from being pronounced against and executed on the applicants, including attempts to seek assurances from the United States via diplomatic contacts that the applicants would not be subjected to the death penalty. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 13 100. The applicants alleged that their transfer to the custody of the Iraqi High Tribunal ( IHT ) exposed them to a real risk of the death penalty, in breach of Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13. The Government disagreed. Article 2 § 1 provides: “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.” Article 3 provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Protocol No. 13 provides : “Preamble The 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; Wishing to strengthen the protection of the right to life guaranteed by the Convention ... Noting that Protocol No. 6 to the Convention, concerning the Abolition of the Death Penalty, signed at Strasbourg on 28 April 1983, does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war; Being resolved to take the final step in order to abolish the death penalty in all circumstances, 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. Article 2: Prohibition of derogations No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.” A. The parties ’ submissions 1. The applicants 101. The applicants submitted that at the date of transfer they faced allegations of war crimes, punishable with sentences including the death penalty. In trials before the IHT to date, 78.4 % of those tried had been convicted and, of those, 35% had been sentenced to death. Despite strenuous efforts and a letter from one of the victim ’ s family asking for clemency, the Government had, by the date of transfer, been unable to obtain an assurance from the Iraqi authorities that the death penalty would not be imposed. On the face of the evidence, there was a clear and real risk that the applicants would be executed if convicted by the IHT, as both the Divisional Court and the Court of Appeal had accepted. 102. The applicants reasoned that in accordance with Article 30 of the Vienna Convention on the Law of Treaties of 1969, Article 2 should be interpreted in the light of Article 1 of Protocol No. 13. Thus, for those States which had ratified the Protocol, the exception in the second part of the second sentence of Article 2 § 1 should be abrogated, with the effect that the passing or execution of a death penalty would breach Article 2 as well as Article 1 of Protocol No. 13. Support for this approach could be found in Soering v. the United Kingdom ( 7 July 1989, § § 102-04, Series A no. 161 ), and Öcalan v. Turkey ( [GC], no. 46221/99, §§ 164-65, ECHR 2005 ‑ IV ). Moreover, the position across Europe had developed significantly since Öcalan, with Protocol No. 13 in force in over 85% of the Council of Europe member States. Hanging was an ineffectual and extremely painful method of killing, such as to amount to inhuman and degrading treatment in breach of Article 3. 103. In any event, the Court in Öcalan ( cited above, §§ 166-69 ) had held that passing the death penalty following a trial which failed to meet “the most rigorous standards of fairness ... both at first instance and on appeal” would breach both Articles 2 and 3. It was argued by the Government in the domestic proceedings, and accepted by the Court of Appeal, that the threshold in foreign cases was met only by the imposition of the death penalty following a flagrantly unfair trial. However, this conclusion was not borne out by the Court ’ s case-law; in Bader and Kanbor v. Sweden ( no. 13284/04, § 47, ECHR 2005 ‑ XI ), the Court referred also to the risk of the imposition of the death penalty following an unfair trial. To the extent that Bader and Kanbor was authority for the Government ’ s position, that decision was inconsistent with the reasoning of the Grand Chamber in Öcalan. 104. There was no obligation under either Iraqi domestic law or international law which required either for the applicants ’ cases to be referred to the Iraqi criminal courts or for them to be reclassified as criminal detainees. The laws and regulations applicable in Iraq, whether adopted by the Coalition Provisional Authority ( CPA ) or by the Iraqi government, could not be determinative of the issues before the Court, which was concerned with the United Kingdom ’ s obligations under the Convention. In any event, CPA Memorandum No. 3 (Revised) was expressly limited to persons taken into detention after June 2004 and “not considered security internees”, whereas the applicants were taken into detention before that date and had at all times been held as security internees. 105. Moreover, there was no evidence that the Iraqi authorities had in any way sought the referral of the applicants ’ case. The applicants were alleged to have been agents of the former Iraqi regime who had, three days into the active hostilities between Iraq and the United Kingdom, killed agents of the United Kingdom State. Their alleged offence was an international crime, as much contrary to United Kingdom law as it was to Iraqi law. It was the United Kingdom, not Iraq, which detained them, investigated their alleged offences and thereafter sought their prosecution. The minutes of the meetings of the Divisional Internment Review Committee ( DIRC: see paragraph 44 above) indicated that the case was only accepted by the Iraqi authorities following considerable persuasion and assistance by the United Kingdom authorities. The Government ’ s repeated suggestion that the decision to detain and prosecute the applicants before the Iraqi courts was an unfettered exercise of Iraqi sovereignty, with which the United Kingdom Government could not contemplate interfering, was unsustainable given the content of the DIRC minutes. The Government ’ s observations focused on the requirement under international law to respect Iraqi sovereignty and failed to mention the United Kingdom ’ s sovereignty. Equally, while the Government placed repeated reliance on the relevant United Nations Security Council resolutions ( UNSCRs ), they had failed to refer to the obligations clearly expressed therein that the States concerned had to comply with their international obligations, including under humanitarian and human rights law. The United Kingdom Ministry of Defence ’ s Joint Doctrine Publication on “ Detainees ” (see paragraph 9 2 above) also recognised that detainees held by British armed forces abroad should not be transferred to the authorities of the territorial State where there was a reason to believe that they would suffer abuses of their human rights. However, the DIRC minutes also showed that the decision to refer the case was taken with high-level authorisation in circumstances where the United Kingdom authorities were fully aware of the risk to the applicants of the death penalty. 106. The applicants further submitted that the Government had not established that, even if there had been an obligation under Iraqi or international law to transfer the applicants to Iraqi jurisdiction, it had to compel the disapplication of the Convention. The national courts had followed the Court of Appeal ’ s approach in R(B) (see paragraph 9 4 above) but there was no authority in the Court ’ s case-law to show that the R(B) approach was correct. Indeed, the Government ’ s contention that its other international obligations should have the effect of entirely displacing its obligations under the Convention was irreconcilable with the judgment in Soering ( cited above ). The requirement on the Court was to interpret the Convention as far as possible in conformity with other international obligations, while heeding its special character as a human rights treaty. While the applicants accepted that the death penalty was not contrary to universal norms of customary international law, there was a clear opinion juris and State practice supporting a regional customary international - law prohibition on exposure to the death penalty by European States. Thus, in addition to the obligation under the Convention, the United Kingdom was under a customary international - law obligation not to expose the applicants to a risk of the death penalty. The Court had also to consider this obligation when interpreting the respondent State ’ s Convention obligations in this case. 107. If the applicants ’ cases had not been referred to the Iraqi courts and if the applicants had not been reclassified as criminal detainees, they would have remained as security internees. As such, they could have remained in internment only for so long as they presented an imperative threat to security and could have been released as soon as the threat was perceived as no longer existing. The United Kingdom had released numerous security internees; it appeared from the DIRC minutes that sixty-nine former internees were released from the detention facility where the applicants were held between April and October 2007 and the statistics provided on the Ministry of Defence website showed a total of one hundred and sixty-two former internees set at liberty in 2007. In the alternative, it would have been open to the United Kingdom authorities to prosecute the applicants on war crimes charges. This would have been permitted during the period of the occupation under Article 70 of the Fourth Geneva Convention (see paragraph 90 above). Even once the occupation had come to an end in June 2004 the United Kingdom retained universal jurisdiction over alleged war crimes, by virtue of section 1 of the Geneva Conventions Act 1957 (see paragraph 9 1 above). The memorandum of understanding ( MOU ) of 8 November 2004 (see paragraph 25 above) specifically envisaged that the United Kingdom would be entitled to take custody with a view to trying them for war crimes: section 3(4)(a)(i) required that, in relation to any criminal suspect transferred by the United Kingdom to the Iraqi authorities, Iraq would inform the United Kingdom before releasing them and would comply with any request for the United Kingdom to reassume custody if they were “wanted for prosecution by any State that has contributed forces to the MNF [ Multinational Force ] for breaches of the laws and customs of war”. Any suggestion that the United Kingdom had no ongoing legal power to detain or try persons suspected of war crimes was therefore at odds with the agreement concluded with Iraq. Such a trial could have taken place on a United Kingdom base in Iraq, in a neutral third State or in the United Kingdom. However, it does not appear that any consideration was given to this method of reconciling the desire to prosecute the applicants and the need to safeguard their human rights, nor any attempt made to negotiate such an outcome with the Iraqi authorities. 2. The Government 108. The Government submitted that, at the date of transfer, there were no substantial grounds for believing that the applicants would face the death penalty, if convicted. While it was correct that Iraqi law permitted capital punishment in respect of offences such as those charged against the applicants, there was no presumption in favour of the death penalty. Following more recent trials before the IHT, such as the 1991 Uprising, the Friday Prayers and the Merchants cases, all of which involved extremely serious charges of crimes against the Iraqi people, only six of the twenty-seven individuals convicted had received the death penalty. In addition, a letter had been sent by relatives of one of the murdered soldiers requesting clemency and the United Kingdom authorities had communicated their opposition to the death penalty to the IHT ’ s President and to the Iraqi authorities (see paragraphs 27-35 and 50-54 above). 109. Moreover, even if the Court were to find that the applicants were at a real risk of being executed following conviction by the IHT, the relevant test under Articles 2 and 3 was that set out in Bader and Kanbor ( cited above ), namely the risk that the individual would suffer a flagrant denial of a fair trial in the receiving State, the outcome of which was or was likely to be the death penalty. In the present case, the evidence, as the domestic courts held, was that the applicants would receive a fair trial before the IHT. 110. The Government were opposed to capital punishment and the United Kingdom was bound by the prohibition on the death penalty in Article 1 of Protocol No. 13. They had communicated their concerns about the reintroduction of the death penalty to the Iraqi authorities (see paragraphs 27-35 above). Nonetheless, the availability of the death penalty in Iraqi law and/or its imposition by the Iraqi courts would not, as such, be contrary to international law. Nor could they accept that execution by hanging per se resulted in additional suffering, over and above that inherent in the carrying out of the death penalty, such as to raise an issue under Article 3. In these circumstances, any risk of its imposition would not justify the United Kingdom in refusing to comply with its obligation under international law to surrender Iraqi nationals, detained at the request of the Iraqi courts, to those courts for trial. The Convention had to be interpreted in the light of and in harmony with other principles of international law and the relevant international law principle in this case could not be more fundamental: the principle that all States must recognise the sovereignty of other States. 111. The Court had to give effect to limitations on the exercise of a Contracting State ’ s jurisdiction, generally accepted by the community of nations, stemming from the fact that the State was acting on the territory of a third State. From the early stages of the occupation period, the United Nations Security Council ( UNSC ) sought to uphold the sovereignty of Iraq and to establish a government of Iraq by Iraq; this could be seen in UNSCR 1483 of 22 May 2003, for example (see paragraph 14 above). The actions of the occupiers were limited by international law in so far as concerned the powers of internment. Pursuant to Article 78 of the Fourth Geneva Convention (see paragraph 90 above), which applied directly during the occupation period, internment was only permissible where necessary for imperative reasons of security. That restriction was reflected in the applicable domestic law, namely section 7(1) of CPA Memorandum No. 3 of 18 June 2003 (see paragraph 13 above). The sovereignty of Iraq, the government of Iraq by Iraq and the limited powers of third States in Iraq were reflected all the more strongly in the UNSCRs in the post-occupation phase: see UNSCR 1546 (paragraph 19 above). It followed from Iraq ’ s sovereignty that the United Kingdom was not entitled to intern or detain Iraqi nationals on Iraq ’ s territory except as permitted by Iraq or otherwise authorised by a binding UNSCR. CPA Order No. 48, enacted pursuant to UNSCR 1483, provided for the establishment of the IHT precisely so that the Iraqi judicial authorities could investigate and try Iraqi nationals accused of war crimes in Iraq. Once informed of the evidence against the applicants, the Iraqi authorities wished to investigate and try them. This was why arrest warrants were issued and why the IHT repeatedly requested the transfer of the applicants to its custody. 112. The United Kingdom had no option other than to transfer the applicants. It was operating in a foreign sovereign State which was demanding the applicants ’ return. As of midnight on 31 December 2008 the United Kingdom would have had no legal basis of any kind for detaining the applicants and no physical means of continuing to detain them or preventing the Iraqi authorities from entering the base and removing them. The other options would have been equally unworkable. If the United Kingdom had released the applicants, this would have amounted to a violation of Iraqi sovereignty and would have impeded the Iraqi authorities in carrying out their international - law obligation to bring alleged war criminals to justice. It would have been impossible to try the applicants in the United Kingdom. The United Kingdom could not simply remove from Iraq two Iraqi nationals suspected of war crimes committed in Iraq. Removal would have been dependent on the permission of Iraq and would otherwise have been in violation of Iraqi sovereignty. Extradition would also have required the consent of the Iraqi authorities. For these reasons, the case was clearly distinguishable from such cases as Soering, cited above, or Chahal v. the United Kingdom ( 15 November 1996, Reports of Judgments and Decisions 1996 ‑ V), where the remedy sought by the applicant was to remain on the Contracting State ’ s territory and where the Contracting State had a discretion whether or not to extradite or deport him. 3. The third parties 113. The Equality and Human Rights Commission submitted that there was a theme in the jurisprudence of the Court regarding the relationship between a State ’ s international - law obligations and its substantive obligations under the Convention. The Court had not generally regarded the substantive Convention obligations as displaced by virtue of a competing or conflicting international - law obligation. A similar approach had recently been taken by the Grand Chamber of the Court of Justice of the European Union in Kadi and Al Barakaat International Foundation v. Council and Commission (Joined Cases C-402/05 P and C - 415/05 P ). 114. The group of interveners (see paragraph 6 above) similarly maintained that, in accordance with Convention principles and jurisprudence and the general principles of customary international law as declared in the Vienna Convention on the Law of Treaties of 1969, the European Convention on Human Rights was not generally displaced by other international legal obligations, including bilateral treaties. The primary factors to be taken into account in resolving the question of an apparent conflict of obligations were: (1) the form of the legal instrument concerned; (2) the degree of compatibility the putatively conflicting obligation maintained with the Convention; for example whether a treaty providing for a transfer of competencies provided for equivalent protection in relation to Convention rights; and (3) the nature of the Convention rights affected. The Convention was a multilateral treaty containing erga omnes partes human rights obligations. A State entering into a conflicting agreement with a non-Convention State continued to owe legal obligations to the other States Parties to the Convention. The Convention jurisprudence, particularly in cases concerning extradition, affirmed that other treaties did not displace the obligations under the Convention. In a line of cases, the Court had considered treaties providing for the transfer of competencies to international organisations and held such transfers to be generally permissible, but only provided that Convention rights continued to be secured in a manner which afforded protection at least equivalent to that provided under the Convention. The interveners submitted that similar principles should apply where a subsequent international obligation of a Contracting State, by treaty or otherwise, provided for joint or cooperative activity with another State, that impacted on the protection of Convention rights within the Contracting State ’ s jurisdiction. B. The Court ’ s assessment 1. General principles ( a ) Protocol No. 13 to the Convention and the abolition of the death penalty 115. The Court takes as its starting point the nature of the right not to be subjected to the death penalty. Judicial execution involves the deliberate and premeditated destruction of a human being by the State authorities. Whatever the method of execution, the extinction of life involves some physical pain. In addition, the foreknowledge of death at the hands of the State must inevitably give rise to intense psychological suffering. The fact that the imposition and use of the death penalty negates fundamental human rights has been recognised by the member States of the Council of Europe. In the Preamble to Protocol No. 13 the Contracting States describe themselves as “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 ”. 116. Sixty years ago, when the Convention was drafted, the death penalty was not considered to violate international standards. An exception was therefore included to the right to life, so that Article 2 § 1 provides that “ [n] o 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”. However, as recorded in the explanatory report to Protocol No. 13, there has subsequently been an evolution towards the complete de facto and de jure abolition of the death penalty within the member States of the Council of Europe (see paragraph 9 5 above; see also paragraph 96 above ). Protocol No. 6 to the Convention, which abolishes the death penalty except in respect of “ acts committed in time of war or of imminent threat of war ”, was opened for signature on 28 April 1983 and came into force on 1 March 1985. Following the opening for signature of Protocol No. 6, the Parliamentary Assembly of the Council of Europe established a practice whereby it required States wishing to join the Council of Europe to undertake to apply an immediate moratorium on executions, to delete the death penalty from their national legislation and to sign and ratify Protocol No. 6. All the member States of the Council of Europe have now signed Protocol No. 6 and all save Russia have ratified it. 117. In October 1997 the Council of Europe Heads of State and Government called for the “ universal abolition of the death penalty ” (see paragraph 9 5 above). Resolution II adopted at the European Ministerial Conference on Human Rights on 3 to 4 November 2000 invited the Committee of Ministers “ to consider the feasibility of a new additional protocol to the Convention which would exclude the possibility of maintaining the death penalty in respect of acts committed in time of war or of imminent threat of war”. Protocol No. 13, which abolishes the death penalty in all circumstances, was opened for signature on 3 May 2002 and came into force on 1 July 2003. At the date of adoption of the present judgment, Protocol No. 13 has been ratified by forty-two member States and signed but not ratified by a further three (Armenia, Latvia and Poland). Azerbaijan and Russia are alone in not having signed the Protocol. It was signed by the United Kingdom on 3 May 2002, ratified on 10 October 2003 and came into force in respect of that State on 1 February 2004. 118. The Court considers 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. As such, its provisions must be strictly construed (see, mutatis mutandis, Soering, cited above, § 88, and McCann and Others v. the United Kingdom, 27 September 1995, § 147, Series A no. 324). ( b ) The effect of signature and ratification of Protocol No. 13 on the interpretation of Articles 2 and 3 of the Convention 119. In Öcalan ( cited above ), the Court examined whether the practice of the Contracting States could be taken as establishing an agreement to abrogate the exception in Article 2 § 1 permitting capital punishment in certain conditions. It noted, with reference to § 103 of the Soering judgment ( cited above ), that if Article 2 were to be read as permitting capital punishment, Article 3 could not be interpreted as prohibiting it, since that would nullify the clear wording of Article 2 § 1. The Grand Chamber in Öcalan (§ 163) agreed on this point with the Chamber, which had held as follows: “... The Court reiterates that it must be mindful of the Convention ’ s special character as a human rights treaty and that the Convention cannot be interpreted in a vacuum. It should so far as possible be interpreted in harmony with other rules of public international law of which it forms part (see, mutatis mutandis, Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI, and Loizidou v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2231, § 43). It must, however, confine its primary attention to the issues of interpretation and application of the provisions of the Convention that arise in the present case. ... It is recalled that the Court accepted in Soering that an established practice within the member States could give rise to an amendment of the Convention. In that case the Court accepted that subsequent practice in national penal policy, in the form of a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under Article 2 § 1 and hence remove a textual limit on the scope for evolutive interpretation of Article 3 (ibid., pp. 40-41, § 103). It was found, however, that Protocol No. 6 showed that the intention of the States was to adopt the normal method of amendment of the text in order to introduce a new obligation to abolish capital punishment in time of peace and to do so by an optional instrument allowing each State to choose the moment when to undertake such an engagement. The Court accordingly concluded that Article 3 could not be interpreted as generally prohibiting the death penalty (ibid., pp. 40-41, §§ 103-04). ... The applicant takes issue with the Court ’ s approach in Soering. His principal submission was that the reasoning is flawed since Protocol No. 6 represents merely one yardstick by which the practice of the States may be measured and that the evidence shows that all member States of the Council of Europe have, either de facto or de jure, effected total abolition of the death penalty for all crimes and in all circumstances. He contended that as a matter of legal theory there was no reason why the States should not be capable of abolishing the death penalty both by abrogating the right to rely on the second sentence of Article 2 § 1 through their practice and by formal recognition of that process in the ratification of Protocol No. 6. ... The Court reiterates that the Convention is a living instrument which must be interpreted in the light of present-day conditions and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999-V). ... It reiterates that in assessing whether a given treatment or punishment is to be regarded as inhuman or degrading for the purposes of Article 3 it cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field (see Soering, cited above, p. 40, § 102). Moreover, the concepts of inhuman and degrading treatment and punishment have evolved considerably since the Convention came into force in 1953 and indeed since the Court ’ s judgment in Soering in 1989. ... Equally the Court observes that the legal position as regards the death penalty has undergone a considerable evolution since Soering was decided. The de facto abolition noted in that case in respect of twenty-two Contracting States in 1989 has developed into a de jure abolition in forty-three of the forty-four Contracting States and a moratorium in the remaining State that has not yet abolished the penalty, namely Russia. This almost complete abandonment of the death penalty in times of peace in Europe is reflected in the fact that all the Contracting States have signed Protocol No. 6 and forty-one States have ratified it, that is to say, all except Turkey, Armenia and Russia. It is further reflected in the policy of the Council of Europe, which requires that new member States undertake to abolish capital punishment as a condition of their admission into the organisation. As a result of these developments the territories encompassed by the member States of the Council of Europe have become a zone free of capital punishment. ... Such a marked development could now be taken as signalling the agreement of the Contracting States to abrogate, or at the very least to modify, the second sentence of Article 2 § 1, particularly when regard is had to the fact that all Contracting States have now signed Protocol No. 6 and that it has been ratified by forty-one States. It may be questioned whether it is necessary to await ratification of Protocol No. 6 by the three remaining States before concluding that the death penalty exception in Article 2 § 1 has been significantly modified. Against such a consistent background, it can be said that capital punishment in peacetime has come to be regarded as an unacceptable ... form of punishment that is no longer permissible under Article 2.” Having thus concluded that the use of the death penalty except in time of war had become an unacceptable form of punishment, the Grand Chamber in Öcalan went on to examine the position as regards capital punishment in all circumstances: “164. The Court notes that, by opening for signature Protocol No. 13 concerning the abolition of the death penalty in all circumstances, the Contracting States have chosen the traditional method of amendment of the text of the Convention in pursuit of their policy of abolition. At the date of this judgment, three member States have not signed this Protocol and sixteen have yet to ratify it. However, this final step towards complete abolition of the death penalty – that is to say both in times of peace and in times of war – can be seen as confirmation of the abolitionist trend in the practice of the Contracting States. It does not necessarily run counter to the view that Article 2 has been amended in so far as it permits the death penalty in times of peace. 165. For the time being, the fact that there is still a large number of States who have yet to sign or ratify Protocol No. 13 may prevent the Court from finding that it is the established practice of the Contracting States to regard the implementation of the death penalty as inhuman and degrading treatment contrary to Article 3 of the Convention, since no derogation may be made from that provision, even in times of war. However, the Grand Chamber agrees with the Chamber that it is not necessary for the Court to reach any firm conclusion on these points since, for the following reasons, it would be contrary to the Convention, even if Article 2 were to be construed as still permitting the death penalty, to implement a death sentence following an unfair trial.” 120. It can be seen, therefore, that the Grand Chamber in Öcalan did not exclude that Article 2 had already been amended so as to remove the exception permitting the death penalty. Moreover, as noted above, the position has evolved since then. All but two of the member States have now signed Protocol No. 13 and all but three of the States which have signed it have ratified it. These figures, together with consistent 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. Against this background, the Court does not consider that the wording of the second sentence of Article 2 § 1 continues to act as a bar to its interpreting the words “inhuman or degrading treatment or punishment” in Article 3 as including the death penalty ( compare Soering, cited above, §§ 102-04). 121. In accordance with its constant case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In considering whether a punishment or treatment was “degrading” within the meaning of Article 3, the Court will have regard to whether its object was to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment ( see A. and Others v. the United Kingdom [GC], no. 3455/05, § 127, ECHR 2009 and the authorities cited therein). 122. Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one of the fundamental values of democratic societies. It makes no provision for exceptions and no derogation from it is permissible under Article 15, even in the event of a public emergency threatening the life of the nation. As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim ’ s conduct, the nature of any offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 (see Saadi v. Italy [GC], no. 37201/06, § 127, ECHR 2008 ). ( c ) State responsibility under the Convention for the imposition and execution of the death penalty in another State 123. The Court further reiterates that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case Article 3 implies an obligation not to deport the person in question to that country (see Saadi, cited above, § 125). Similarly, Article 2 of the Convention and Article 1 of Protocol No. 13 prohibit the extradition or deportation of an individual to another State where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty there ( see Hakizimana v. Sweden (dec.), no. 37913/05, 27 March 2008; and, mutatis mutandis, Soering, cited above, § 111; S.R. v. Sweden (dec.), no. 62806/00, 23 April 2002; Ismaili v. Germany (dec.), no. 58128/00, 15 March 2001; Bader and Kanbor, cited above, § 42; and Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009 ). 124. In this type of case the Court is therefore called upon to assess the situation in the receiving country in the light of the requirements of the above Articles. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the Contracting State, by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment (see Saadi, cited above, § 126). 125. In order to determine whether there is a risk of ill- treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances ( ibid., § 130). The existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion ( ibid., § 133). Where the expulsion or transfer has already taken place at the date of the Court ’ s examination, it is not precluded, however, from having regard to information which comes to light subsequently (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 107(2), Series A no. 215; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 69, ECHR 2005 ‑ I; and, mutatis mutandis, A. and Others, cited above, § 177 ). ( d ) The extent to which conflicting international obligations affect responsibility under the Convention 126. The Government contended that they were under an obligation under international law to surrender the applicants to the Iraqi authorities. In this connection, the Court notes that the Convention must be interpreted in the light of the rules set out in the Vienna Convention on the Law of Treaties of 1969, of which Article 31 § 3 (c) indicates that account is to be taken of “any relevant rules of international law applicable in the relations between the parties”. More generally, the Court reiterates that the principles underlying the Convention cannot be interpreted and applied in a vacuum. The Convention should be interpreted as far as possible in harmony with other principles of international law of which it forms part ( see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI, and Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 55-57, ECHR 2001 ‑ XII ). The Court has also long recognised the importance of international cooperation (see Al-Adsani, cited above, § 54, and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 150, ECHR 2005 ‑ VI ). 127. The Court must in addition have regard to the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms. Its approach must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, inter alia, Soering, cited above, § 87; Loizidou v. Turkey ( preliminary objections), 23 March 1995, § 72, Series A no. 310; and McCann and Others, cited above, § 146). 128. It has been accepted that a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party ’ s “jurisdiction” from scrutiny under the Convention ( see Bosphorus, cited above, § 153 ). The State is considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention ( ibid., § 154 and the cases cited therein ). For example, in Soering ( cited above ), the obligation under Article 3 of the Convention not to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture or inhuman or degrading treatment or punishment was held to override the United Kingdom ’ s obligations under the Extradition Treaty it had concluded with the United States in 1972. 2. Application of the above principles to the present case 129. The Court reiterates that the first applicant was arrested by soldiers from the United Kingdom contingent of the MNF on 30 April 2003 and the second applicant on 21 November 2003. They were held in British -run detention facilities as security internees. However, from an early stage in the applicants ’ internment the British authorities were investigating their involvement in the murders of Staff Sergeant Cullingworth and Sapper Allsopp (see paragraphs 40-43 above). 130. On 28 June 2004 the occupation of Iraq came to an end. In August 2004 the death penalty was reintroduced into the Iraqi Penal Code in respect of a number of offences, including murder (see paragraph 23 above). 131. On 16 December 2005 the United Kingdom authorities referred the applicants ’ cases to the Iraqi criminal courts (see paragraph 45 above). On 18 May 2006 the Basra Criminal Court made an order authorising their continued detention by British forces and on 21 May 2006 the United Kingdom authorities decided to reclassify the applicants as “criminal detainees” (see paragraph 46 above). From 2 7 December 2007 the IHT requested that the applicants be transferred to its custody to stand trial on charges carrying the death penalty (see paragraph 48 above). On 31 December 2008 the United Kingdom authorities physically transferred the applicants to the custody of the Iraqi police (see paragraph 80 above). 132. The applicants ’ trial before the IHT commenced on 11 May 2009. They were originally charged with killing the two British soldiers when they had clearly surrendered, an offence carrying a maximum penalty of the death sentence. On 21 July 2009, following the close of evidence, the original capital charges against the applicants were withdrawn and an offence which did not carry the death penalty was substituted. A week later an additional charge was added, which could in principle have been punishable by death. In January 2010 the Court of Cassation decided to remit the case for renewed investigation and retrial (see paragraphs 82- 89 above). 133. The Court notes that the Divisional Court and the Court of Appeal concluded, shortly before the physical transfer took place, that substantial grounds had been shown for believing there to be a real risk of the applicants ’ being condemned to the death penalty and executed (see paragraphs 60 and 70 above). In coming to this conclusion, the domestic courts took into account the facts that the death penalty was available for the offences with which the applicants were charged; that there was clear evidence that persons convicted of such offences were liable in practice to be sentenced to death; that no assurance that the death penalty would not be applied had been given by the Iraqi authorities; and that the other factors relied on by the Government, for example the letter from the family of one of the victims requesting clemency, were not sufficiently cogent nor certain to negate the risk. 134. The Court, having itself examined the evidence, sees no reason to depart from the findings of the national courts on this issue. Moreover, it considers that, despite the additional letter submitted by the United Kingdom Government to the IHT in July 2009, informing the IHT that the family of the other murdered soldier did not want the death penalty to be imposed (see paragraph 86 above), the Iraqi authorities have still not given any binding assurance that it will not. The applicants ’ case has recently been remitted for reinvestigation and retrial and it is impossible to predict the outcome. In these circumstances the Court does not consider that the risk of the applicants ’ being executed has been entirely dispelled. 135. Moreover, it considers that, given the nature of the evidence and allegations against the applicants, from August 2004, when the death penalty was reintroduced in Iraq, there were substantial grounds for believing that they would run a real risk of being sentenced to death if tried and convicted by an Iraqi court. Indeed, the minute of the meeting of the DIRC of 27 July 2004 recorded that the United Kingdom Secretary of State was already at that stage concerned about the death penalty (see paragraph 44 above). Similar expressions of concern were reported in the minutes of 31 August 2004 and 31 January and 3 May 2005. 136. The applicants must themselves have been aware of this risk. The Court considers that, at least from May 2006, when the Iraqi criminal courts accepted jurisdiction over their cases, the applicants were subjected to a well-founded fear of execution. It is reasonable to assume that this fear caused the applicants intense psychological suffering. It must have continued throughout their appeals to the Iraqi courts against the referral of their cases to the IHT (see paragraph 47 above) and the refusal of the English domestic courts to prevent their physical transfer to the Iraqi authorities. It undoubtedly intensified around 31 December 2008, when the risk became more concrete and the transfer took place, and continues to this day. 137. Protocol No. 13 came into force in respect of the United Kingdom on 1 February 2004. The Court considers that, from that date at the latest, the respondent State ’ s obligations under Article 2 of the Convention and Article 1 of Protocol No. 13 dictated that it should not enter into any arrangement or agreement which involved it in detaining individuals with a view to transferring them to stand trial on capital charges or in any other way subjecting individuals within its jurisdiction to a real risk of being sentenced to the death penalty and executed. Moreover, it considers that the applicants ’ well-founded fear of being executed by the Iraqi authorities during the period May 2006 to July 2009 must have given rise to a significant degree of mental suffering and that to subject them to such suffering constituted inhuman treatment within the meaning of Article 3 of the Convention. 138. The Government have contended that, in accordance with well - established principles of international law, they had no option but to respect Iraqi sovereignty and transfer the applicants, who were Iraqi nationals held on Iraqi territory, to the custody of the Iraqi courts when so requested. In this respect, however, the Court refers to its case-law, summarised in paragraphs 12 6 to 1 2 8 above, to the effect that it is not open to a Contracting State to enter into an agreement with another State which conflicts with its obligations under the Convention. This principle carries all the more force in the present case given the absolute and fundamental nature of the right not to be subjected to the death penalty and the grave and irreversible harm risked by the applicants. 139. The domestic courts considered themselves bound by the principles of international law concerning “ diplomatic asylum ”, as applied by the Court of Appeal in the R(B) case (see paragraphs 58, 72 and 9 4 above), to find that the duty to provide refuge extraterritorially could operate only where there was clear evidence that the territorial State intended to subject the individual to treatment so harsh as to constitute a crime against humanity. It is not necessary in this judgment for the Court to examine generally the principles of “ diplomatic asylum ” or to establish when, if ever, the surrender of an individual by a Contracting State ’ s diplomatic or consular agents could give rise to a violation of the Convention. It merely notes in passing that the Commission in its admissibility decision in M. v. Denmark, no. 17392/90, Commission decision of 14 October 1992, Decisions and Reports 73, p. 193, appeared to assume, albeit without detailed reasoning, that the Soering principle against refoulement would apply where an individual sought and was refused refuge in a Contracting State ’ s embassy. 140. The Court considers in any event that the facts of the present case are such as clearly to distinguish it from a situation of “diplomatic asylum”, for the following reasons. Diplomatic and consular premises have a particular status under international law. When a State sets up a diplomatic mission it agrees to respect the laws of the territorial State and not to interfere in its internal affairs (Vienna Convention on Diplomatic Relations of 1961, Article 41 § 1 : see paragraph 93 above ); this is one of the conditions on which the territorial State consents to the establishment of the mission. Thus, when an individual seeks refuge at an embassy, the obligations owed by the sending State to the territorial State are known and apply ab initio ( although there may be other conflicting obligations, for example under the Convention ). In contrast, in the present case, the applicants did not choose to seek refuge with the authorities of the United Kingdom; instead, the respondent State ’ s armed forces, having entered Iraq, took active steps to bring the applicants within the United Kingdom ’ s jurisdiction, by arresting them and holding them in British -run detention facilities (see Al-Saadoon and Mufdhi v. the United Kingdom (dec.), no. 61498/08, §§ 84-89, 30 June 2009). In these circumstances, the Court considers that the respondent State was under a paramount obligation to ensure that the arrest and detention did not end in a manner which would breach the applicants ’ rights under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13. 141. In any event, the Government have not satisfied the Court that the need to secure the applicants ’ rights under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13 inevitably required them to act in contravention of Iraqi sovereignty. It does not appear from the evidence before the Court that, despite the concerns voiced at ministerial level as early as July 2004 about the risk of the imposition of the death penalty if the applicants were tried by the Iraqi courts (see paragraph 44 above), any real attempt was made to negotiate with the Iraqi authorities to prevent it. According to the evidence of Mr Watkins before the Divisional Court and Court of Appeal (see paragraphs 56 and 66 above), it was the judgment of the United Kingdom Government towards the end of 2008 that it would not be politic even to raise with the Iraqi government the possibility of removing the applicants to the United Kingdom or continuing to detain them in Iraq after 31 December 2008. However, it would appear from the minute of the DIRC meeting of 28 September 2004 that the Iraqi prosecutors initially had “cold feet” about bringing the case themselves, because the matter was “so high profile” (see paragraph 44 above). This could have provided an opportunity to seek the consent of the Iraqi government to an alternative arrangement involving, for example, the applicants being tried by a United Kingdom court, either in Iraq or in the United Kingdom. It does not appear that any such solution was ever sought. 142. The Government accept, moreover, that no attempt was made, during the negotiations for the United Kingdom -Iraq MOU of 8 November 2004 or at any other time, to seek a general assurance from the Iraqi authorities that, in the light of the United Kingdom ’ s binding obligations under the Convention and Protocol No. 13, no individual transferred from the physical custody of the British armed forces could be subjected to the death penalty. Similarly, the Government do not contend that, before the decision was made to refer the applicants ’ cases to the Iraqi courts, any request was made to the Iraqi authorities for a binding assurance that, if the cases were referred, the applicants would not be at risk of capital punishment. Indeed, it would appear that it was only after the applicants had lodged an application for judicial review before the Divisional Court that a first effort was made to seek clemency on their behalf. However, as the domestic courts found, no binding guarantee was obtained. 143. In summary, therefore, the Court considers that, in the absence of any such binding assurance, the referral of the applicants ’ cases to the Iraqi courts and their physical transfer to the custody of the Iraqi authorities failed to take proper account of the United Kingdom ’ s obligations under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 1 3 since, throughout the period in question, there were substantial grounds for believing that the applicants would face a real risk of being sentenced to death and executed. 144. The outcome of the applicants ’ case before the IHT is currently uncertain. While the applicants remain at real risk of execution since their case has been remitted for reinvestigation, it cannot at the present time be predicted whether or not they will be retried on charges carrying the death penalty, convicted, sentenced to death and executed. Whatever the eventual result, however, it is the case that through the actions and inaction of the United Kingdom authorities the applicants have been subjected, since at least May 2006, to the fear of execution by the Iraqi authorities. The Court has held above that causing the applicants psychological suffering of this nature and degree constituted inhuman treatment. It follows that there has been a violation of Article 3 of the Convention. 145. In the circumstances, and in view of the above finding, the Court does not consider it necessary to decide whether there have also been violations of the applicants ’ rights under Article 2 of the Convention and Article 1 of Protocol No. 13. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 146. The applicants alleged that, at the moment they were transferred to Iraqi custody, there were substantial grounds for believing that they were at a real risk of being subjected to an unfair trial before the IHT in breach of their rights under Article 6 § 1 of the Convention, which provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” The Government denied that there was any risk of an unfair trial. A. The parties ’ submissions 147. The applicants alleged that the fairness of trials before the IHT had been the subject of widespread and ongoing criticism from numerous non-governmental organisations and international bodies, focusing both on the IHT ’ s lack of independence and its general ability to conduct a trial meeting even the most basic international requirements. They referred to reports by the International Center for Transitional Justice ( Dujail: Trial and Error? (November 2006)); the United Nations Human Rights Council ’ s Working Group on Arbitrary Detentions (Opinion 31/2006, in relation to the trial and detention of Saddam Hussein); Human Rights Watch ( The Poisoned Chalice: A Human Rights Watch Briefing Paper on the Decision of the Iraqi High Tribunal in the Dujail Case (June 2007 )); and the statements of their expert witness who had given evidence before the domestic courts (see paragraph 59 above). With reference to these reports, the applicants alleged in particular that IHT personnel and witnesses appearing before it were subject to extreme security risks, including the risk of assassination and that defendants were left without effective representation because of the risk to counsel. The applicants alleged that there was no tradition of judicial independence in Iraq and that the judges of the IHT were subject to continual political interference. These shortcomings explained the conviction rate of approximately 80% of accused persons tried before the IHT. 148. The Government submitted that there was no real risk that the applicants would be submitted to a flagrant denial of justice, as the Divisional Court and Court of Appeal correctly decided on the basis of the extensive and recent evidence before them. B. The Court ’ s assessment 149. In Mamatkulov and Askarov ( cited above, §§ 90 and 91 ), the Grand Chamber confirmed the principle first laid down in Soering ( cited above, § 113 ), that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of a fair trial in the requesting country. As with cases under Article 3, the Court considers that, where the removal has already taken place, the existence of the risk of a flagrant breach of Article 6 must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of removal, although the Court is not precluded from having regard to information which comes to light subsequently (see paragraph 125 above). 150. However, in the present case the Court accepts the national courts ’ finding that, at the date of transfer, it was not established that the applicants would risk a flagrantly unfair trial before the IHT. Now that the trial has taken place, there is no evidence before the Court to cast doubt on that assessment. It follows that the Court finds no violation of Article 6 of the Convention. III. ALLEGED VIOLATION OF ARTICLES 13 AND 34 OF THE CONVENTION 151. The applicants contended that their physical transfer to the Iraqi authorities, in breach of the Court ’ s indication under Rule 39 of the Rules of Court, gave rise to a violation of Article 34 of the Convention, which provides: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” Furthermore, since at the time the House of Lords had not yet had the opportunity to determine their appeal, the transfer also violated their right to an effective domestic remedy, in breach of Article 13 of the Convention, which states: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” The Government rejected these contentions. A. The parties ’ submissions 1. The applicants 152. The applicants submitted that the consequences of transferring them to the Iraqi authorities in breach of the Court ’ s Rule 39 indication could not have been more serious, both as to their right to individual petition and their right to an effective remedy. Both this Court ’ s judgment in Paladi v. Moldova ( [GC], no. 39806/05, § 92, 10 March 2009 ) and the judgment of the International Court of Justice (ICJ) in LaGrand (judgment of 27 June 2001, ICJ Reports 2001, p. 466 ), on which the Government relied, made it clear that the obligation was to take all reasonable steps to comply with an indication of interim measures. Nonetheless, the Government had conceded that at no stage did they make any approach to the Iraqi authorities to investigate the possibility of detaining the applicants at the British detention facility at Basra for the matter of the few weeks or months that it would take for the legal issues to be resolved. Moreover, the Government had failed to inform either the Court or the applicants ’ representatives on the morning of 31 December 2008 that they did not intend to comply with the Rule 39 indication. The Court was informed only when the transfer had taken place. 153. They claimed that the Government had been fully aware that the House of Lords did not have provision for vacation business and that the earliest a petition for leave to appeal and interim relief could be lodged was 12 January 2009. In transferring the applicants before that date, the Government knew that their right to seek such leave and thus their chance of an effective domestic remedy would be vitiated. 2. The Government 154. The Court had held in Paladi ( cited above ), that it was for a respondent Government to demonstrate that there was an objective impediment which prevented its compliance with an interim measure indicated under Rule 39 of the Rules of Court. In the Government ’ s submission, the question whether there was such an objective impediment had to be assessed in each case with reference to the legal or factual scenario. As the Court had confirmed in its case-law, the Convention had to be interpreted in the light of and in harmony with other principles of international law. This was no less the case when it came to the interpretation of Article 34 and Rule 39. Indeed, much of the reasoning behind the Court ’ s decision in Mamatkulov and Askarov ( cited above ), as to the binding nature of Rule 39 indications was based on consideration of other principles of international law, including the judgment of the ICJ in LaGrand, cited above. In that judgment, in a passage cited by the Court in Paladi, the ICJ emphasised that its Order of provisional measures “did not require the United States to exercise powers it did not have”, although it did impose the obligation to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the conclusion of the proceedings. 155. In the present case, the Rule 39 indication should not be interpreted as requiring the Contracting State to exercise powers it did not have, including notably the power to continue to detain the applicants after midnight on 31 December 2008. An indication under Rule 39 could not require a Contracting State to violate the law and sovereignty of a non-Contracting State. This was, indeed, an exceptional case. If it was correct that the relevant acts fell within the jurisdiction of the United Kingdom, the case was by definition “exceptional” in terms of the extraterritorial application of the Convention (see Banković, cited above, § 74). Further, the exceptional nature of the case derived specifically from the fact that the United Kingdom was acting or being required to act outside its own territory. It could not comply with the Rule 39 indication precisely because it was on the territory of another State. The Government were proud of their long history of cooperation with the Court and their compliance with previous Rule 39 indications. They had failed to comply with the indication in this case only because there was an objective impediment preventing compliance. 156. The Government dismissed as irrelevant the submissions by the third parties to the effect that the obligation to comply with a Rule 39 indication was not discharged by a competing international obligation (see paragraphs 158-59 below). The present case did not involve conflicting obligations where a State could choose to act either in accordance with treaty A or treaty B. The simple point, which the interveners did not address, was that the Government could not comply with the Rule 39 indication; they did not have the relevant powers nor any discretion as to how to act. The applicants alleged that the Government could have done more, but this was to ignore the extreme sensitivity of the important and urgent negotiations that were taking place with Iraq at that time (see paragraphs 56 and 66 above). 157. In the Government ’ s submission, the complaint under Article 13 was unfounded since the applicants did not seek leave to appeal to the House of Lords until 9 February 2009. At the time of the transfer there were no domestic proceedings pending. 3. The third parties 158. The Equality and Human Rights Commission submitted that there could be no principled exception to the principle in Mamatkulov and Askarov ( cited above ), that a State ’ s failure to comply with an interim measure would be a violation of Article 34, where the State ’ s failure was based on an international - law obligation (assuming that such an obligation had been identified and existed). The rejection of such an exception flowed from the Court ’ s case-law regarding conflicts between international - law obligations and substantive Convention obligations and also from the rationale behind the Mamatkulov and Askarov rule, which was the need to protect the practical effectiveness of the Convention system for individual applicants. 159. The group of interveners (see paragraph 6 above) reasoned that, given the purpose and significance of interim measures in protecting Convention rights, the obligation under Article 34 to abide by these measures should be strictly and consistently applied. A State had to take all steps available to it to comply with the order and, in deciding whether and to what extent to comply with interim measures, could not substitute its own judgment for that of the Court. The judgments in Soering and Mamatkulov and Askarov demonstrated that a competing international obligation did not permit the disregard of interim measures. B. The Court ’ s assessment 1. General principles 160. Interim measures under Rule 39 of the Rules of Court are indicated only in limited spheres. In practice, the Court will make such an indication only if there is an imminent risk of irreparable damage. While there is no specific provision in the Convention concerning the domains in which Rule 39 will apply, requests for its application usually concern the right to life (Article 2), the right not to be subjected to torture or inhuman treatment (Article 3) and, exceptionally, the right to respect for private and family life (Article 8) or other rights guaranteed by the Convention (see Mamatkulov and Askarov, cited above, § 104). Under the Convention system, interim measures play a vital role in avoiding irreversible situations that would prevent the Court from properly examining the application and, where appropriate, securing to the applicant the practical and effective benefit of the Convention rights asserted. Accordingly, in these conditions a failure by a respondent State to comply with interim measures will undermine the effectiveness of the right of individual application guaranteed by Article 34 and the State ’ s formal undertaking in Article 1 to protect the rights and freedoms set forth in the Convention ( ibid., § 125). 161. Article 34 will be breached if the authorities of a Contracting State fail to take all steps which could reasonably have been taken in order to comply with the interim measure indicated by the Court ( see Paladi, cited above, § 88). In examining a complaint under Article 34 concerning the alleged failure of a Contracting State to comply with an interim measure, the Court will not re-examine whether its decision to apply interim measures was correct. It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation ( ibid., § 92). 2. Application of the above principles to the present case 162. As stated above, the Court ’ s approach in interpreting the Convention must be guided by the fact that its object and purpose as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective. It has found that the decisions of the United Kingdom authorities to refer the applicants ’ cases to the Iraqi courts in December 2005 and to transfer them physically to Iraqi custody on 31 December 2008, without having first received any binding assurance that they would not be subjected to the death penalty, put them at real risk of being executed. It has further found that, as a matter of principle, it was not open to the respondent State to enter into an agreement or arrangement with another State which conflicted with its obligations under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13. Finally, it has found that the Government have failed to establish that there were no realistic or practicable means available to them by which to safeguard the applicants ’ fundamental human rights. In these circumstances, the “objective impediment” claimed by the Government, namely the absence, on 31 December 2008, of any available course of action consistent with respect for Iraqi sovereignty other than the transfer of the applicants, was of the respondent State ’ s own making. 163. Moreover, the Government have not satisfied the Court that they took all reasonable steps, or indeed any steps, to seek to comply with the Rule 39 indication. They have not informed the Court, for example, of any attempt to explain the situation to the Iraqi authorities and to reach a temporary solution which would have safeguarded the applicants ’ rights until the Court had completed its examination. 164. It is true that from June 2008 the Government began to make approaches to the Iraqi authorities, initially to ascertain from the President of the IHT what steps would be effective under Iraqi law and practice to reduce the risk of the applicants receiving the death sentence (see paragraphs 50-54 above). Subsequently, in July 2008 the Government contacted the Iraqi prosecutors and requested them to inform the IHT that the Government were opposed to the death penalty and that neither of the families of the two murdered soldiers wished it to be imposed (see paragraph 86 above). These contacts may or may not have contributed to the IHT ’ s decisions to amend the charges against the applicants (see paragraphs 86-88 above); this is not a matter on which the Court is able to speculate. However, as the domestic courts also found, the Government ’ s approaches to the Iraqi authorities prior to the transfer of the applicants on 31 December 2008 were not sufficient to secure any binding assurance that the death penalty would not be applied and the applicants remained at real risk when the United Kingdom decided not to comply with the Court ’ s indication under Rule 39. The Government ’ s efforts in 2009 to persuade the Iraqi authorities not to use the death penalty came after the applicants had left United Kingdom jurisdiction and therefore at a time when the United Kingdom authorities had lost any real and certain power to secure their safety. Moreover, to date no binding assurance that the death penalty will not be applied has been given and the applicants ’ fate remains uncertain. 165. In conclusion, the Court does not consider that the authorities of the Contracting State took all steps which could reasonably have been taken in order to comply with the interim measure taken by the Court. The failure to comply with the interim measure and the transfer of the applicants out of the United Kingdom ’ s jurisdiction exposed them to a serious risk of grave and irreparable harm. 166. In the admissibility decision of 30 June 2009 (see paragraph 7 above) the Court joined the question of the admissibility of Article 13 to the merits. Having now examined the merits, and having found in connection with Article 34 that there was no objective justification for the transfer, it reaches the conclusion on similar grounds that the effectiveness of any appeal to the House of Lords was unjustifiably nullified as a result of the Government ’ s transfer of the applicants to the Iraqi authorities. The Court therefore finds the complaint under Article 13 admissible and it finds violations of Articles 13 and 34 of the Convention. IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION 167. Article 46 of the Convention provides : “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” 168. The applicants asked the Court to order the Government to take a number of measures which might assist in mitigating the damage caused by their transfer to Iraqi custody. In particular, the applicants requested the Court to order the Government to use their best endeavours to secure by diplomatic representations the applicants ’ immediate return to United Kingdom custody. Further or alternatively, the Government should be ordered to use their best endeavours to ensure that the applicants received a fair trial before the IHT, were enabled to remain in contact with their English legal representatives and were not sentenced to the death penalty if convicted. They referred, inter alia, to Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, § 490, ECHR 2004-VII) where the Court ordered the respondent States to take every measure to put an end to the arbitrary detention of the applicants still detained and to secure their immediate release. 169. The Government submitted that this was not a case permitting of restitutio in integrum. The applicants were in Iraqi custody. The Government had no means whatsoever of securing their return to the custody of British forces and no power to detain them in Iraq even if they were returned. The judgment of those involved in negotiating with Iraq prior to the transfer was that there was no prospect of the Iraqi authorities agreeing to the applicants ’ continued detention by British forces (see paragraphs 56 and 66 above). Careful further consideration had been given to these matters and it was the Government ’ s considered view that the diplomatic representations sought would be inappropriate, could harm bilateral relations and would be ineffective. Likewise, it was the Government ’ s considered view that it would not be appropriate to make the further representations sought as to the full and continuing cooperation of the Iraqi government, and in particular the IHT, with the United Kingdom Government, as regards access by the applicants to their representatives in the United Kingdom and the IHT ’ s manner of operating. 170. The Court notes that where it finds a violation, the respondent State has a legal obligation under Article 46 of the Convention not just to pay those concerned any sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects. The respondent State remains free, subject to monitoring by the Committee of Ministers, to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Assanidze v. Georgia [GC], no. 71503/01, § 202, ECHR 2004-II; and Ilaşcu and Others, cited above, § 490). 171. In the present case, the Court has found that through the actions and inaction of the United Kingdom authorities the applicants have been subjected to mental suffering caused by the fear of execution amounting to inhuman treatment within the meaning of Article 3. While the outcome of the proceedings before the IHT remains uncertain, that suffering continues. For the Court, compliance with their obligations under Article 3 of the Convention requires the Government to seek to put an end to the applicants ’ suffering as soon as possible, by taking all possible steps to obtain an assurance from the Iraqi authorities that they will not be subjected to the death penalty. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 172. Article 41 of the Convention provides as follows: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Non-pecuniary damage 173. The applicants claimed that they were entitled to a substantial award in respect of non-pecuniary damage, given the fundamental nature of the rights that had been violated and the United Kingdom ’ s failure to comply with the Rule 39 indication. They submitted that there was no comparable case, but in the light of awards made in cases under Article 2 involving loss of life caused or contributed to by the State, they were each entitled to compensation in the region of 50,000 pounds sterling (GBP) for exposure to a real risk of the death penalty, together with a further GBP 25,000 in respect of the breaches of Articles 13 and 34. 174. The Government submitted that, in the event that the Court found a violation, that finding would be sufficient just satisfaction. They denied that the applicants were suffering from fear and distress and referred to the report of the Provost Marshall, the British army officer responsible for conducting inspections of British overseas military detention facilities (see also paragraph 61 above), who had visited the applicants in Rusafa Prison on 24 April 2008 and found that they appeared healthy and looked well. Furthermore, it would be inappropriate to award compensation where the damages claimed arose out of a situation where the applicants had been transferred into the custody of the authorities of a host State for investigation and trial for alleged war crimes, in accordance with international law. The sums sought were in any event excessive. The cases relied on by the applicants had involved awards of damages to a relative in respect of an actual killing. 175. In all the circumstances of the present case, the Court considers that the findings of a violation of Articles 3, 13 and 34 and the indication made under Article 46 constitute sufficient just satisfaction for the non-pecuniary damage suffered by the applicants. B. Costs and expenses 176. The applicants claimed a total of GBP 48,131.58 in respect of the costs and expenses of bringing the application before the Court, inclusive of value-added tax (VAT) at 15%. They claimed for a total of 377 hours and 10 minutes ’ work by legal advisers, including 189 hours and 24 minutes spent by solicitors, charged at GBP 180 per hour for the senior solicitor and GBP 130 per hour for the junior solicitor; 20 hours ’ work by one QC and 5 hours ’ work by another, charged at GBP 350 per hour; 5 hours ’ work by a second QC; and a total of 162 hours and 45 minutes spent on the application by three other barristers. 177. The Government acknowledged that the application raised a number of complex issues. Nonetheless they considered that the total time spent by the applicants ’ legal team was excessive and that the use of eight different lawyers must have contributed to duplication and extra costs. They submitted that a total figure of 250 hours would be more reasonable. Furthermore, the hourly sum of GBP 350 for two of the counsel was too high; an hourly rate of GBP 250 would be more appropriate. 178. In the light of the complex issues raised by this case and based on its practice in comparable cases, the Court awards 4 0 ,000 euros in respect of costs and expenses, together with any tax that may be chargeable to the applicants. C. Default interest 179. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The death penalty as inhuman and degrading treatment: The Court emphasised that although 60 years ago, when the European Convention on Human Rights was drafted, the death penalty had not violated international standards, there had been a subsequent evolution towards its complete abolition, in law and in practice, within all 47 Council of Europe Member States / States Parties to the Convention. Two Protocols to the Convention had entered into force, abolishing the death penalty in time of peace (Protocol No. 6) and in all circumstances (Protocol No. 13), and the United Kingdom had ratified them both. All but two Convention States had signed Protocol No. 13 and all but three States which had signed it had ratified it. That demonstrated that Article 2 of the Convention had been amended so as to prohibit the death penalty in all circumstances. Consequently, the Court held that the death penalty, which involved the deliberate and premeditated destruction of a human being by the State authorities causing physical pain and intense psychological suffering as a result of the foreknowledge of death, could be considered inhuman and degrading and, as such, contrary to Article 3 of the Convention. Under Article 46 (binding force and execution of judgments) of the Convention, the Court further observed in this case that the UK Government were required to seek to put an end to the suffering the fear of execution caused the applicants as soon as possible, by taking all possible steps to obtain an assurance from the Iraqi authorities that they would not be subjected to the death penalty.