The Threshold of Inhuman and Degrading Treatment or Punishment : under which circumstances should extradition, expulsion, or return be refused?

Abstract

Internationally, the death penalty, also known as the capital punishment, receives increasingly more criticism, as it is regarded as an inhuman punishment and should therefore be abolished. However, there is no international legal justification for an absolute abolishment, because the death penalty is not categorised as a human rights violation. Although in approximately 160 States the death penalty has been abolished de jure or de facto, there are also States in which the scope of the death penalty has been expanded over the last years. An issue is raised when it concerns the extradition or transfer of individuals from an abolitionist State to a retentionist State. Since transfer could cause such an individual to face a capital punishment, while he or she was in the custody of a State which abolished such a punishment. Such a transfer can be refused based upon the guarantee to protect basic human rights. Therefore, the question is raised: “What is the threshold of inhuman or degrading treatment or punishment and thus grounds for refusal of extradition, expulsion, or return, in cases concerning the death penalty?” Requested States cannot transfer if there are substantial grounds for believing the threshold of inhuman or degrading treatment or punishment will be surpassed. Primarily, the death row phenomenon, a death penalty proceeded by an unfair trial and the manner in which the death penalty would be carried out constituted as inhuman and degrading treatment or punishment and thus grounds for refusal. However, in 2010 the European Court on Human Rights ruled that the death penalty itself would lead to a human rights violation. Considering the anguish and psychological suffering of the defendant, he or she was not to be transferred. Thus, the threshold of inhuman or degrading treatment or punishment and thus grounds for refusal of transfer is exceeded in every case where there are substantial grounds for believing the death penalty will be imposed.