By Tobias Thienel

Some time ago, I reported in this space on the case of Al-Saadoon and Mufdhi, first in the English courts and then in the European Court of Human Rights. I was remiss in failing to report on the merits judgment (on which see Marko Milanovic’s excellent post at EJIL:Talk!), but I did at least have a few words on the admissibility decision. The merits judgment is now set down for publication in the Court’s official reports, so it’s rightly regarded as somewhat important.

However – somewhat to my surprise – the panel of the Grand Chamber has now refused the UK’s application for referral to the Grand Chamber. Al-Saadoon and Mufdhi therefore now stands undisturbed for the propositions that

– the ECHR does not bow to conflicting other international law (such as obligations of extradition) except on its own terms,

– that the permission of the death penalty in Article 2 of the ECHR has been extinguished, both by subsequent Protocols and sub silentio,

– that Article 3 of the ECHR therefore now covers the death penalty, which amounts to cruel and inhuman treatment,

– that Article 2 of the ECHR and Article 1 of Protocol 13 create an obligation of non-refoulement where there is a risk that the death penalty will be imposed and

– that, once a State has violated that obligation, it may be under an obligation to use diplomatic means to prevent that risk from materialising.

The decision of the panel of the Grand Chamber does not, strictly speaking, approve the Chamber judgment, or take it to the level of authority that a Grand Chamber judgment possesses. It is also probably wrong to surmise what this might mean for the resolution of Al-Skeini and Al-Jedda (on which see another post of Marko’s at EJIL:Talk!). However, it is always nice to see a good judgment sustained on appeal.