CONCURRING OPINION OF JUDGE CABRAL BARRETO

(Translation)

I joined the majority in finding a violation of Article 2 of the Convention as I had no other means of expressing my opinion that there had been a violation not of that provision, but of Article 1 of Protocol No. 13.

Allow me to explain.

In my opinion, this is the first time the Court has plainly stated that the extradition or deportation of a person to a country where he or she risks an unfair trial followed by capital punishment will violate Article 2 of the Convention.

In Öcalan v. Turkey ([GC], no. 46221/99, ECHR 2005-IV), the Court (sitting as a Grand Chamber) examined this issue in depth.

In paragraph 166 of its judgment, the Grand Chamber endorsed the following statement by the Section:

“... Even if the death penalty were still permissible under Article 2, the Court considers that an arbitrary deprivation of life pursuant to capital punishment is prohibited. This flows from the requirement that '[e]veryone's right to life shall be protected by law'. An arbitrary act cannot be lawful under the Convention ...”

However, despite noting that “[i]t follows from the above construction of Article 2 that the implementation of the death penalty in respect of a person who has not had a fair trial would not be permissible”, the Grand Chamber declined to find a violation of Article 2, preferring instead to examine the issue under Article 3.

It went on to say:

“167. The above conclusion concerning the interpretation of Article 2 where there has been an unfair trial must inform the opinion of the Court when it considers under Article 3 the question of the imposition of the death penalty in such circumstances.

168. As the Court has previously noted ..., the manner in which the death penalty 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 (see Soering , cited above, p. 41, § 104).

169. In the Court's view, to impose a death sentence on a person after an unfair trial is to subject that person wrongfully to the fear that he will be executed. The fear and uncertainty as to the future generated by a sentence of death, in circumstances where there exists a real possibility that the sentence will be enforced, must give rise to a significant degree of human anguish. Such anguish cannot be dissociated from the unfairness of the proceedings underlying the sentence which, given that human life is at stake, becomes unlawful under the Convention.”

The Court said in conclusion in paragraph 175:

“Consequently, the Court concludes that the imposition of the death sentence on the applicant following an unfair trial by a court whose independence and impartiality were open to doubt amounted to inhuman treatment in violation of Article 3 ...”

In the operative provisions of that judgment, the Grand Chamber confined itself to holding that there had been a violation of Article 3 of the Convention as regards the imposition of the death penalty following an unfair trial.

Notwithstanding the conclusions in Öcalan , it seems to me (and it is for this reason that I voted with the majority) that the Section is entitled to go a little further on the basis of the Grand Chamber's reasoning with respect to Protocols Nos. 6 and 13.

After noting that Protocol No. 6 could be taken as already signalling “the agreement of the Contracting States to abrogate, or at the very least to modify, the second sentence of Article 2 § 1” (§ 163), the Grand Chamber accepted that Protocol No. 13 could 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” (§ 164).

The States that have already ratified Protocol No. 13 wished to replace the obligation arising under Article 2 of the Convention by a stronger one, namely an obligation to abolish the death penalty in all circumstances.

The second sentence of Article 2 has, as it were, been abrogated, or at least rendered redundant, by the entry into force of Protocol No. 13.

The States that have ratified Protocol No. 13 have undertaken not only never to implement capital punishment but also not to put anyone at risk of incurring that penalty.

Consequently, there is no need to examine the trial or the situation of the person sentenced to death prior to the sentence being carried out because there will always be a violation of Article 1 of Protocol No. 13.

Sweden has already ratified Protocol No. 13.

I would therefore prefer to find that, in the instant case, the applicants' expulsion to Syria would entail a violation of Article 1 of Protocol No. 13, in addition to a violation of Article 3 of the Convention.