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 Kingdom. This case was also concerned with the extradition to the United States of a fugitive to face murder charges for which capital punishment was a competent sentence. It was argued that this would expose him to inhuman and degrading treatment or punishment in breach of article 3 of the European Convention on Human Rights. Article 2 of the European Convention protects the right to life but makes an exception in the case of "the execution of a sentence of a court following [the] conviction of a crime for which this penalty is provided by law." The majority of the Court held that article 3 could not be construed as prohibiting all capital punishment, since to do so would nullify article 2. It was, however, competent to test the imposition of capital punishment in particular cases against the requirements of article 3—the manner in which it is imposed or executed, the personal circumstances of the condemned person and the disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution, were capable of bringing the treatment or punishment received by the condemned person within the proscription.

On the facts, it was held that extradition to the United States to face trial in Virginia would expose the fugitive to the risk of treatment going beyond the threshold set by article 3. The special factors taken into account were the youth of the fugitive (he was 18 at the time of the murders), an impaired mental capacity, and the suffering on death row which could endure for up to eight years if he were convicted. Additionally, although the offence for which extradition was sought had been committed in the United States, the fugitive who was a German national was also liable to be tried for the same offence in Germany. Germany, which has abolished the death sentence, also sought his extradition for the murders. There was accordingly a choice in regard to the country to which the fugitive should be extradited, and that choice should have been exercised in a way which would not lead to a contravention of article 3. What weighed with the Court was the fact that the choice facing the United Kingdom was not a choice between extradition to face a possible death penalty and no punishment, but a choice between extradition to a country which allows the death penalty and one which does not. We are in a comparable position. A holding by us that the death penalty for murder is unconstitutional, does not involve a choice between freedom and death; it involves a choice between death in the very few cases which would otherwise attract that penalty under section 277(1)(a), and the severe penalty of life imprisonment.

Capital Punishment in India

In the amicus brief of the South African Police, reliance was placed on decisions of the Indian Supreme Court, and it is necessary to refer briefly to the way the law has developed in that country.

Section 302 of the Indian Penal Code authorises the imposition of the death sentence as a penalty for murder. In Bachan Singh v State of Punjab, the constitutionality of this provision was put in issue. Article 21 of the Indian Constitution provides that: