CONCURRING OPINION OF JUDGE DE MEYER

The applicant ’ s extradition to the United States of America would not only expose him to inhuman or degrading treatment or punishment. It would also, and above all, violate his right to life.

Indeed, the most important issue in this case is not "the likelihood of the feared exposure of the applicant to the ‘ death row phenomenon ’ " [1] , but the very simple fact that his life would be put in jeopardy by the said extradition.

The second sentence of Article 2 § 1 (art. 2-1) of the Convention, as it was drafted in 1950, states that "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".

In the circumstances of the present case, the applicant ’ s extradition to the United States would subject him to the risk of being sentenced to deat h, and executed, in Virginia [2] for a crime for which that penalty is not provided by t he law of the United Kingdom [3] .

When a person ’ s right to life is involved, no requested State can be entitled to allow a requesting State to do what the requested State is not itself allowed to do.

If, as in the present case, the domestic law of a State does not provide the death penalty for the crime concerned, that State is not permitted to put the person concerned in a position where he may be deprived of his life for that crime at the hands of another State.

That consideration may already suffice to preclude the United Kingdom from surrendering the applicant to the United States .

There is also something more fundamental.

The second sentence of Article 2 § 1 (art. 2-1) of the Convention was adopted, nearly forty years ago, in particular historical circumstances, shortly after the Second World War. In so far as it still may seem to permit, under certain conditions, capital punishment in time of peace, it does not reflect the contemporary situation, and is now overridden by the development of l egal conscience and practice [4] .

Such punishment is not consistent with the present state of European civilisation.

De facto, it no longer exists in any State Party to the Con vention [5] .

Its unlawfulness was recognised by the Committee of Ministers of the Council of Europe when it adopted in December 1982, and opened for signature in April 1983, the Sixth Protocol (P6) to the Convention, which to date has been signed by sixteen, and ratified by thirteen, Contracting States.

No State Party to the Convention can in that context, even if it has not yet ratified the Sixth Protocol, be allowed to extradite any person if that person thereby incurs the risk of being put to death in the requesting State.

Extraditing somebody in such circumstances would be repugnant to European standards of justice, and contrary to the public order of Europe [6] .

The applicant ’ s surrender by the United Kingdom to the United States could only be lawful if the United States were to give absolute assurances that he will not be put to death if convicted of the crime he is charged with [7] .

No such assurances were, or can be, obtained.

The Federal Government of the United States is unable to give any undertaking as to what may or may not be decided, or done, by the judicial and other authorities of the Commonwealth of Virginia [8] .

In fact, the Commonwealth ’ s Attorney dealing with the case inten ds to seek the death penalty [9] and the Commonwealth ’ s Governor has never commuted a death sentence since the imposition of the death penalty was resumed in 1977 [10] .

In these circumstances there can be no doubt whatsoever that the applicant ’ s extradition to the United States woul d violate his right to life [11] .

[*]  Note by the registry: The case is numbered 1/1989/161/217.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 161 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[1] § 99 of the judgment.

[2] § 40 of the judgment.

[3] § 27 of the judgment.

[4] See also Article 6 §§ 2 and 6 of the International Covenant on Civil and Political Rights and Article 4 §§ 2 and 3 of the American Convention on Human Rights.  The very wording of each of these provisions, adopted respectively in 1966 and in 1969, clearly reflects the evolution of legal conscience and practice towards the universal abolition of the death penalty.

[5] § 102 of the judgment.

[6] See, mutatis mutandis, the judgment of 27 February 1987 by the French Conseil d'État in the Fidan case, Recueil Dalloz Sirey , 1987, pp. 305-310.

[7] See the French Fidan judgment referred to above.

[8] § 97 of the judgment.

[9] § 20 of the judgment.

[10] § 60 of the judgment.

[11] This opinion deals only with what I consider to be the essential points.  I would just like to add briefly that (a) I cannot agree with the first sub-paragraph of § 86, or with § 89, since these parts of the Court's reasoning leave too much room for unacceptable infringements of the fundamental rights of persons whose extradition is sought, and (b) with due respect for the Court's case-law, I wish to maintain my earlier reservations concerning the matters at issue in § 115, the first sub-paragraph of § 117 and § 127 (see the W v. the United Kingdom judgment of 8 July 1987, Series A no. 121-A, p. 42, the Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 35, and the W v. the United Kingdom judgment of 9 June 1988 (Article 50) (art. 50), Series A no. 136-C, p. 26).