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09 July 2013

ECHR: 'Life' Is 'Inhumane And Degrading'

By Ed Morrissey

Here in the US, we have debates over the appropriateness and application of the death penalty, so we haven’t yet started any debate over its usual replacement, life without possibility of parole.  Europe has mainly eliminated the death penalty, which should have left them free to focus on other legal and law-enforcement issues. Instead, the European Court of Human Rights ruled that the UK violated the EU charter’s Article 3 by imposing life without parole — called “whole life” in the EU in three cases:

Whole-life jail sentences without any prospect of release amount to inhuman and degrading treatment of prisoners, the European court of human rights has ruled.

The landmark judgment will set the ECHR on a fresh collision course with the UK government but does not mean that any of the applicants – the convicted murderers Jeremy Bamber, Peter Moore and Douglas Vinter – are likely to be released soon.

In its decision, the Strasbourg court said there had been a violation of article 3 of the European convention on human rights, which prohibits inhuman and degrading treatment.

The judgment said: “For a life sentence to remain compatible with article 3 there had to be both a possibility of release and a possibility of review.”

The court emphasised, however, that “the finding of a violation in the applicants’ cases should not be understood as giving them any prospect of imminent release. Whether or not they should be released would depend, for example, on whether there were still legitimate penological grounds for their continued detention and whether they should continue to be detained on grounds of dangerousness. These questions were not in issue.”

Life without parole developed — at least in the US — as a means to give the state an option to the death penalty.  Rather than have the state kill dangerous murderers and violent convicts, juries instead could ensure that these defendants would never be released into society again, save for a pardon or commutation from a governor, who would be politically liable for such actions.  That ended the perceived turnstiles at the gates of prisons where violent felons got released into society by overly sympathetic parole boards and, in some cases, state-sanctioned killings through the death penalty.

Is life without parole a rational outcome? Take a look at the cases at hand in this ECHR ruling, which is legally enforceable in the UK:

The appeal was brought by Vinter, who murdered a colleague in 1996 and after being released stabbed his wife in 2008; Bamber, now 51, who killed his parents, his sister Sheila Cafell and her two young children in 1985; and Moore, who killed four gay men for his sexual gratification in 1995.

One is a family annihilator, and another a serial killer who targeted gays.  The third got a release after his first murder just to murder again.  Amazingly, the EU appellate court ruled by a 16-1 decision that Vinter’s human rights had been violated and awarded him €40,000 for it.   Had the decision rested on the individual merits of the prosecution — Bamber insists he’s innocent of the crime, for instance — then demanding judicial review for parole might have made some sense.  Instead, the ECHR has broadly eliminated “whole life” altogether.

My colleague Jeb Golonkin at The Week is mystified by the reasoning:

It’s difficult to figure out what bodies of law or precedent this purportedly legal body looked to discern the meaning of “inhumane and degrading.” It certainly is not history, nor is it the European convention on human rights, because, well, it’s been around a bit and the court is only now coming round to making this rather remarkable declaration. Even applying the modern “evolving standards of decency” test, which the Supreme Court of the United States uses to measure the propriety of a punishment, one has to wonder whether there is a society on Earth where more than a small minority of people believes that no crime exists that is so reprehensible that the perpetrator at least ought to go to jail knowing that he has no hope of ever being a free man again.

If you want to know why many Americans are fundamentally suspicious of international law and the tribunals that purport to enforce it, this decision offers a good example. There are legitimate arguments to be made about imposing life sentences on minors (see Frontline‘s When Kids Get Life for a fantastic look at the problems), but the idea that a convicted murderer must always have the opportunity to win his freedom no matter the circumstances is a startling proposition.

Indeed. And this could give new impetus to death-penalty proponents who might worry that American courts might be tempted to make the same ruling based on the Eighth Amendment proscription on cruel and unusual punishment.


Another example of the EU imposing its ‘morality’ on once-sovereign people. 

BUT, don’t make the mistake of assuming that the EU, itself, lives up to its own standards and moral demands.

A perfect example of this is the death penalty. The death penalty, while actually not condemned by majorities in many EU member states, has been illegal in most countries in the EU for many years. (Latvia abolished it last year)

From the EU’s website:

The European Union holds a strong and principled position against the death penalty; its abolition is a key objective for the Union’s human rights policy. Abolition is, of course, also a pre-condition for entry into the Union.

Indeed, the EU is the leading institutional actor and largest donor to the fight against the death penalty. This commitment is outlined clearly in the EU Guidelines on the death penalty, the first ever human rights guidelines adopted by Council, in 1998.

Furthermore, Article II, Clause II of the Charter of Fundamental Rights of the European Union explicitly states:

‘No one shall be condemned to the death penalty, or executed.’

Now, after reading that, one could easily infer that the EU strongly opposes the use of the death penalty by any country, transnational organisation, and for any reason.

One would also be wrong to make that inference.

You see, in the Soviet-like EU with its 27 unelected, unaccountable apparatchiks, the death penalty was reintroduced in a footnote to the Treaty of Lisboa, upon neither the whole nor part of which the overwhelming majority of Europeans were allowed to vote. In its ‘explanations’ and ‘negative definitions’ accompanying the fundamental rights, the Charter of Fundamental Rights of the European Union allows a reintroduction of the death penalty in case of war or imminent war, but also the killing of humans to suppress insurgency or riot. 

The footnoted ‘fine print’:

3. The provisions of Article 2 of the Charter correspond to those of the above Articles of the ECHR and its Protocol. They have the same meaning and the same scope, in accordance with Article 52(3) of the Charter. Therefore, the ‘negative’ definitions appearing in the ECHR must be regarded as also forming part of the Charter:

(a) Article 2(2) of the ECHR:

Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

(b) Article 2 of Protocol No 6 to the ECHR:

A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions…

In other words, the murderers of children or serial killers of homosexuals cannot be executed. Hell, not even Anders Behring-Breivik, who murdered 77 people, was eligible for the death penalty…or life in prison. He was sentenced to 21 years at a posh prison. If you are deemed an ‘enemy of the state’ by the EU, however, you can be sentenced to death. 

If the people of Cyprus had rioted and/or staged an insurrection, they could have been sentenced to death by the EU.

Like most Progressives, the mantle of moral supremacy donned by EUrophiles is neither as moral nor as supreme as they claim.

'It appears the EU can rewrite any statute of any member state merely by claiming it violates some human right which it just made up.'

- tommyboy on July 9, 2013 at 10:47 AM

It can. To use the American political system, the EU is the ‘Federal government’ and its courts are the ‘Supreme Court.’ The law of the EU is supreme to that of its member states.

It’s not only the ‘law’ either. The laws AND regulations of the EU trump those of the member states…and, some of the regs are quite unbelievable and textbook micromanagement. Earlier this year, the EU attempted to ban unlabelled olive oil jugs on restaurant tables. Outcry from across the EU resulted in the withdrawing of the ban.

Don’t forget that this is the same supranational organisation that issued a diktat saying manufacturers could not claim that water can prevent dehydration.

Another example of the European ‘Federal government’ dictating local issues… 

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