Dec 1, 2010
Zagorski: US Executions, UK Law and European Human Rights
Any case involving the death penalty in the United States and European human rights is likely to pique the interest of legal observers. The death penalty – still an accepted part of the criminal justice system in the United States – is considered to be a violation of human rights in Europe. In Soering v UK, the European Court of Human Rights famously held that the extradition of the applicant from the UK to the US would result in a breach of Article 3. The Court held that
having regard to the very long period of time spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant’s extradition to the United States would expose him to a real risk of [inhuman and degrading treatment].
The case of Zagorski & Baze, argued before the High Court in London last week and decided on Tuesday once more draws together US capital punishment, UK law and European human rights standards. The lead applicant, Edmund Zagorski, is in custody facing execution for the killing of two men over a drug deal in 1983. Acting on his behalf, the campaigning group Reprieve sought judicial review of the decision by Business Secretary, Vince Cable, not to ban the export of sodium thiopental to the United States. The Minister originally claimed that the drug, which is used in executions, also has medical uses. However, last week, having ascertained that the export is only used for executions, the Minister has reversed his position.
The High Court was nonetheless left with several legal questions concerning the applicability of European human rights standards. From the outset, the Court acknowledged that the European Convention on Human Rights was not applicable as Article 1 of the Convention only requires states to secure the rights of “everyone within their jurisdiction”. In its Bankovic judgment the European Court of Human Rights ruled that “jurisdiction” ordinarily means the state’s territory or exceptionally territory under the “effective control” of the state. This ruling has been accepted by the UK Supreme Court (then the House of Lords) in Al-Skeini. Thus, as Zagorski was (unlike Soering in the earlier case) in the US and under the effective control of US authorities he could not claim protection under the European Convention.
The ECHR case-law is relevant in this case to explain Zagorski’s first argument – he claimed a breach of Article 4 of the EU Charter of Fundamental Rights. The Charter applies when Member States are “implementing Union law” and therefore is clearly relevant here as export controls are subject to regulation by EU law. Zagorski claimed a breach of Article 4 of the Charter which prohibits inhuman or degrading treatment. He claimed that the Charter is not jurisdictionally bound in the way that the Convention is. As a result he argued that the export of drugs to execute him would breach his Charter rights. Article 52(3) of the Charter appeared to aid his case – it provides that where a Charter right duplicates a Convention right “the meaning and scope of those rights shall be the same as those laid down by the said Convention”. Furthermore, this rule “shall not prevent Union law providing more extensive protection”. Thus, Article 4 of the Charter provides equivalent protection from the death penalty as the Convention does, and Zagorski claimed it did so without jurisdictional limit due to the absence of a territorial limit such as that found in Article 1 ECHR.
The High Court judge, Lloyd Jones J, rejected this argument. Analysing Article 52(3) of the Charter he pointed out that the rule providing for equivalent protection applied not only to the meaning of the rights, but also to their scope. That, he claimed, is “the natural meaning of the words”. He noted that the EU may provide more extensive protection but held that in the absence of such protection the Charter rights should be co-extensive with those in the Convention. It is not clear on what grounds the judge concluded that the Union did not seek to provide more extensive protection in this area. The final sentence of Article 52(3) would appear to provide scope for EU law to be interpreted as going further than the Convention. However, the Court did not see fit to do so in Zagorski. This appears a fair conclusion under the circumstances – if the EU seeks to raise the level of protection then arguably such action should be taken by EU institutions rather than the UK High Court.
The judge continued by noting that the sort of protection without territorial limits proposed by the applicants would be “radical” because the “Charter would confer such rights on anyone, anywhere in the world, regardless of whether they have any connection with the EU”. He suggested that such a change could surely not happen without an explicit statement to that effect. On this point the judge somewhat over-states the potential impact of the applicant’s argument. While the applicant sought to escape the territorial limit imposed on the equivalent Convention rights, the Charter does require a connection with EU law for its rights to be engaged. Thus, the judge could have accepted the applicant’s argument without, for example, placing the UK under an obligation to prevent all breaches of human rights across the globe. The UK would simply be prohibited, when acting under EU law, from engaging in action which violated the rights of any individual regardless of where they are on the globe. Put in this fashion, the applicant’s proposal is less radical. Nonetheless, it seems fair to conclude that on the basis of the text of the Charter and the relevant Convention case-law the judge was indeed correct to conclude that the scope of protection should be equivalent to that under the Convention. The judgment is well-argued on this point and if EU law is to provide more extensive protection then a clear indication from the political or judicial institutions of Europe is needed for it to do so.
The case also considered a related point – the potential impact of the UK Protocol to the Lisbon Treaty which clarifies the application of the Charter in the UK. This point has already been considered in Saeedi and a reference is pending before the Court of Justice. In Zagorski the High Court judge noted that the Protocol appears to preclude any extension of rights such as that proposed by the applicant. While the judge’s inference is not unreasonable, it is unlikely that the Protocol will have so profound an effect as to prevent the European Court of Justice or UK courts from further developing human rights protection. However, in Zagorski Lloyd Jones J did not rely on the Protocol to decide the on the Charter’s applicability but instead based his decision on the text of the Charter itself. His reluctance, borne out of consideration for the pending litigation before the Court of Justice, is commendable. The remainder of the judgment concerned common law protections of human rights and review based on rationality – matters of administrative law which remain to be resolved.
Overall the analysis of the European human rights questions in the judgment is to be praised for its clarity and coherence. It may be that the level of human rights protection does evolve beyond that outlined by this judgment. For now the decision demonstrates a willingness to engage in a real and meaningful way with the impact of the Charter on European human rights – a willingness sorely missing in the High Court decision in Saeedi. This willingness to engage will be increasingly important in the years to come. Zagorski demonstrates that while the last decade has been dominated by the Human Rights Act, there’s a new catalogue of rights to be grappled with and everything is changing all over again.
Cian, do you know if there have been any further developments on the Zagorski case? Did it go further than the High Court? If so, will it go to the ECtHR? Is there any prospect of a preliminary ruling from the ECJ?