PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE GARLICKI

I. Article 3

1. I am writing this separate opinion because I feel that, in this case, the Court should have decided, in the operative provisions of its judgment, that Article 3 had been violated because any imposition of the death penalty represents per se inhuman and degrading treatment prohibited by the Convention. Thus, while correct, the majority ' s conclusion that the imposition of the death penalty following an unfair trial represents a violation of Article 3 seems to me to stop short of addressing the real problem.

2. It is true that the majority ' s conclusion was sufficient to establish a violation in the instant case and that it was not absolutely necessary to produce any firm conclusion on the – more general – point of whether the implementation of the death penalty should now be regarded as inhuman and degrading treatment contrary to Article 3 in all circumstances. I accept that there are many virtues in judicial self - restraint, but am not persuaded that this was the best occasion to exercise it.

I am fully aware that the original text of the Convention allowed capital punishment provided the guarantees referred to in Article 2 § 1 were in place. I am also aware that in Soering v. the United Kingdom ( judgment of 7 July 1989, Series A no. 161) this Court declined to hold that the new international context permitted it to conclude that the exception provided for in the second se ntence of Article 2 § 1 had been abrogated. Today the Court, while agreeing that “it can be said that capital punishment in peacetime has come to be regarded as an unacceptable ... form of punishment which is no longer permissible under Article 2” ( see paragraph 163 of the judgment), seems to be convinced that there is no room for the death penalty even within the original text of the Convention. But, at the same time, it has chosen not to express that position in a universally binding manner. In my opinion, there are some arguments suggesting that the Court could and should have gone further in this case.

3. First of all, there seems to be no dispute over the substance of the problem. The Court was clearly right in observing that, over the past fifteen years, the territories encompassed by the member States of the Council of Europe have become a zone free of capital punishment and that such a 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. It is not necessary to recapitulate here all the relevant developments in Europe; it seems sufficient to quote the 2002 o pinion of the Parliamentary Assembly of the Council of Europe in which it recalled that in its most recent resolutions “it reaffirmed its beliefs that the application of the death penalty constitutes inhuman and degrading punishment and a violation of the most fundamental right, that to life itself, and that capital punishment has no place in civilised, democratic societies governed by the rule of law”. Thus, today, in 2005, condemnation of the death penalty has become absolute and even fairness of the highest order at trial cannot legitimate the imposition of such a penalty. In other words, it is possible to conclude that the member States have agreed through their practice to modify the second sentence of Article 2 § 1. The only problem is: who shall have the power to declare, in a binding manner, that such modification has taken place? So, this is a problem not of substance, but of jurisdiction (competence). In consequence, the only question that remains is whether the Court has the power to state the obvious truth, namely that capital punishment has now become an inhuman and degrading punishment per s e .

4. In answering this question, it is necessary to bear in mind that the Convention, as an international treaty, should be applied and interpreted in accordance with general rules of international law, in particular Article 39 of the Vienna Convention. This suggests that the only way to modify the Convention is to follow the “normal proc edure of amendment” (see paragraphs 103 - 04 of Soering , cited above, and paragraphs 164-65 of the present judgment).

But the Convention represents a very distinct form of international instrument and – in many respects – its substance and process of application are more akin to those of national constitutions than to those of “typical” international treaties. The Court has always accepted that the Convention is a living instrument and must be interpreted in the light of present-day conditions. This may result (and, in fact, has on numerous occasions resulted) in judicial modifications of the original meaning of the Convention. From this perspective, the role of our Court is not very different from the role of national C onstitutional C ourts , whose mandate is not only to defend constitutional provisions on human rights, but also to develop them. The Strasbourg Court has demonstrated such a creative approach to the text of the Convention many times, holding that the Convention rights and freedoms are applicable to situations which were not envisaged by the original drafters. Thus, it is legitimate to assume that, as long as the member States have not clearly rejected a particular judicial interpretation of the Convention (as occurred in relation to the expulsion of aliens, which became the subject of regulation by Protocols Nos. 4 and 7), the Court has the power to determine the actual meaning of words and phrases which were inserted into the text of the Convention more than fifty years ago. In any event, and this seems to be the situation with regard to the death penalty, the Court may so proceed when its interpretation remains in harmony with the values and standards that have been endorsed by the member States.

5. This Court has never denied that the “living-instrument approach” may lead to a judicial imposition of new, highe r standards of human rights protection. However, with respect to capital punishment, it adopted – in Soering – “a doctrine of pre-emption”. As I have mentioned above, the Court found that , since the member States had decided to address the problem of capital punishment by way of formal amendments to the Convention, this matter became the “preserve” of the States and the Court was prevented from applying its living-instrument doctrine.

I am not sure whether such an interpretation was correct in Soering or applicable to the present judgment.

The judgment in Soering was based on the f act that, although Protocol No. 6 had provided for the abolition of the death penalty, several member States had yet to ratify it in 1989. Thus, it would have been premature for the Court to take any general position as to the compatibility of capital punishment with the Convention. Now, the majority raises basically the same argument with respect to Protocol No. 13 , which, it is true, remains in the process of ratification.

But this may only demonstrate a hesitation on the part of certain member States over the best moment to irrevocably abolish the death penalty. At the same time, it can no longer be disputed that – on the European level – there is a consensus as to the inhuman nature of the death penalty. Therefore, the fact that governments and politicians are preparing a formal amendment to the Convention may be understood more as a signal that capital punishment should no longer exist than as a decision pre-empting the Court from acting on its own initiative.

That is why I am not convinced by the majority ' s replication of the Soering approach. I do not think that there are any legal obstacles to this Court taking a decision with respect to the nature of capital punishment.

6. Such a decision would have universal applicability; in particular, it would prohibit any imposition of the death penalty, not only in times of peace but also in wartime or other warlike situations. But it should not stop the Court from taking this decision today. It may be true that the history of Europe demonstrates that there have been wars, like the Second World War, during which (or after which) there was justification for capital punishment. I do not think, however, that the present interpretation of the Convention should provide for such exceptions: it would be rather naïve to believe that, if a war of a similar magnitude were to break out again, the Convention as a whole would be able to survive, even if concessions were made with regard to the interpretation of capital punishment. On the other hand, if there is a war or armed conflict of a local dimension only – and this has been the experience of the last five decades in Europe – the international community could and should insist on respect for basic values of humanity, inter alia , on the prohibition of capital punishment. The same reasoning should apply to other “wars”, like – in particular – the “war on terror”, in which there is today no place for capital punishment (see Article X § 2 of the Committee of Ministers of the Council of Europe ' s “ Guidelines on h uman r ights and the f ight a gainst t errorism ” issued on 11 July 2002 ) .

Furthermore, it is notable that, as the S tatute of the recently established International Criminal Court shows, the international community is of the opinion that even the most dreadful crimes can be dealt with without resorting to capital punishment.

7. In the last fifteen years , several C onstitutional C ourts in Europe have been invited to take a position on capital punishment. The courts of Hungary , Lithuania , Albania and Ukraine had no hesitation in decreeing that capital punishment was no longer permitted under the Constitutions of their respective countries, even if this was not clearly stated in the written text of those documents. The Constitutional Courts have, nevertheless, adopted the position that the inability of the political branches of government to take a clear decision on the matter should not impede the judicial branch from doing so. A similar approach was taken by the Constitutional Court of South Africa.

I am firmly convinced that the European Court of Human Rights should have followed the same path in the present judgment.

II. Article 6 § 1

To my regret, I cannot join the majority in finding a violation of Article 6 § 1 of the Convention on the ground that the applicant was not tried by an independent and impartial tribunal. In this respect, my views are set out in the joint partly dissenting opinion I have expressed with Mr Wildhaber, Mr Costa, Mr Caflisch , Mr Türmen and Mr Borrego Borrego.