33
SOERING v. THE UNITED KINGDOM JUDGMENT
longer consistent with regional standards of justice", to use the words of
Amnesty International, is reflected in Protocol No. 6 (P6) to the
Convention, which provides for the abolition of the death penalty in time of
peace. Protocol No. 6 (P6) was opened for signature in April 1983, which in
the practice of the Council of Europe indicates the absence of objection on
the part of any of the Member States of the Organisation; it came into force
in March 1985 and to date has been ratified by thirteen Contracting States to
the Convention, not however including the United Kingdom.
Whether these marked changes have the effect of bringing the death
penalty per se within the prohibition of ill-treatment under Article 3 (art. 3)
must be determined on the principles governing the interpretation of the
Convention.
103. The Convention is to be read as a whole and Article 3 (art. 3)
should therefore be construed in harmony with the provisions of Article 2
(art. 2) (see, mutatis mutandis, the Klass and Others judgment of 6
September 1978, Series A no. 28, p. 31, § 68). On this basis Article 3 (art.
3) evidently cannot have been intended by the drafters of the Convention to
include a general prohibition of the death penalty since that would nullify
the clear wording of Article 2 § 1 (art. 2-1).
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 (art. 2-1) and hence to remove a textual limit on the
scope for evolutive interpretation of Article 3 (art. 3). However, Protocol
No. 6 (P6), as a subsequent written agreement, shows that the intention of
the Contracting Parties as recently as 1983 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, what is more, to do so by an
optional instrument allowing each State to choose the moment when to
undertake such an engagement. In these conditions, notwithstanding the
special character of the Convention (see paragraph 87 above), Article 3 (art.
3) cannot be interpreted as generally prohibiting the death penalty.
104. That does not mean however that circumstances relating to a death
sentence can never give rise to an issue under Article 3 (art. 3). The manner
in which it is imposed or executed, the personal circumstances of the
condemned person and a disproportionality to the gravity of the crime
committed, as well as the conditions of detention awaiting execution, are
examples of factors capable of bringing the treatment or punishment
received by the condemned person within the proscription under Article 3
(art. 3). Present-day attitudes in the Contracting States to capital punishment
are relevant for the assessment whether the acceptable threshold of suffering
or degradation has been exceeded.