Death penalty unconditionally abolished by 25 EU member states

Twenty five of 27 EU member states have abolished the death penalty in all circumstances, and even the recalcitrant two have done away with capital punishment during peaceful times.


What do Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom have in common?





Final step

As of 25 August 2010, these 25 member states of the European Union were among the 42 members of the Council of Europe, which have ratified Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances (CETS No.: 187).



Protocol No. 13 to the ECHR expresses the resolve to take the final step in order to abolish the death penalty in all circumstances, which is stated in unequivocal terms:

Article 1 – Abolition of the death penalty

The death penalty shall be abolished. No one shall be condemned to such penalty or executed.


Article 2 – Prohibition of derogations

No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.


Article 3 – Prohibition of reservations

No reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol.

Protocol No. 13 is in force between the 42 ratifying states:

Article 5 – Relationship to the Convention

As between the States Parties the provisions of Articles 1 to 4 of this Protocol shall be regarded as additional articles to the Convention, and all the provisions of the Convention shall apply accordingly.

Two missing EU



We note that some progress has been made. When I published the blog post EU reintroducing the death penalty? (25 April 2008), four EU members had signed but not ratified Protocol No. 13 to the ECHR. Since then, Italy ratified 3 March 2009 and Spain 16 December 2009, so this latest ratification came into force as recently as 1 April 2010, during the Spanish presidency of the Council of the European Union.

Instead of four, only two of the 27 member states of the European Union still mar the picture of unity in Europe and abroad. Latvia and Poland have signed but not ratified Protocol No. 13.

Let us hope that soon Latvia and Poland lend their weight to the efforts of the Council of Europe and the European Union to abolish the death penalty globally.



Five missing CoE

The adoption of Protocol No. 13 to the ECHR is almost universal among the CoE’s 47 members. In addition to the two EU laggards, only three member states of the pan-European organisation have not brought the unconditional ban on capital punishment into force.

Armenia has signed but not ratified. Azerbaijan and Russia have neither signed nor ratified.



In peaceful times



All 46 CoE members but Russia have, however, ratified the earlier Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty (CETS No.: 114).



Protocol No. 6 to the ECHR abolishes the death penalty (Article 1), but leaves open the right to enact a law on capital punishment for acts committed in times of war or imminent threat of war:

Article 2 – Death penalty in time of war

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. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.

In other words, all EU states (and all other CoE members, except Russia) have abolished the death penalty with regard to peaceful times.



According to Wikipedia, 58 nations in the world still maintain the death penalty in both law and practice, while 95 have abolished it.



ECHR turns 60



The 60th anniversary of the European Convention on Human Rights is on 4 November 2010. During this time human rights protection in Europe has developed:

Over half a century, the rights enshrined in the Convention have gradually evolved, thanks to the way the European Court of Human Rights has interpreted it – its so-called case-law – and to various protocols that have established new rights relating to circumstances that could not have been anticipated when it was first adopted.

One part of this gradual evolving body of law has been the abolishment of the death penalty, described on the thematic web page The Council of Europe is a death penalty free area, with links to legal and political documents (including the Fact Sheet with main points).



The European Day against the death penalty is held annually; the next one on 10 October 2010.



EU Charter

Article 2 of the Charter of Fundamental Rights of the European Union echoes the ban on the death penalty (as published in the consolidated version OJEU 30.3.2010 C 83/392):

Article 2
Right to life

1. Everyone has the right to life.

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

The EU Charter builds on the ECHR as well as other human rights documents, making it the most modern and comprehensive “bill of rights” in Europe with regard to its contents. The Charter applies to the European Union, but to the member states only when they implement EU law.



Among the EU members, only the United Kingdom and Poland break ranks by opt-outs from the EU Charter.




Addition 26 August 2010: I forgot to mention that there is political agreement with the Czech Republic that it will opt out of the EU Charter, but legally this will be piggy-backed on the next accession treaty.




Ralf Grahn



P.S. Comments relevant to the topic discussed in each Grahnlaw blog post are most welcome. However, the number of spam comments has skyrocketed. This is the sad reason for comment moderation, so it may take a while before your valued comment appears.

It is easier to understand a language than to use it correctly. As Eurobloggers we could and should promote interaction among Europeans across borders and between linguistic communities. Grahnlaw has adopted a multilingual comment policy:

I do my best to read comments in Danish, Dutch, English, Finnish, French, German, Italian, Norwegian, Portuguese, Spanish or Swedish, even if the Grahnlaw blog and my possible replies are in English.



Antonia on the Euonym blog (Talking about the EU) tells us that the European Commission in the UK arranges a Day of Multilingual Blogging on 26 September 2010, and the UK Representation has been joined by the multilingual aggregator Bloggingportal.eu and individual Eurobloggers. Join the event page on Facebook, spread the word through social media and personal contacts, begin preparing your blog posts and start learning a new language.

Europe against the death penalty

The Council of Europe and the European Union work to eradicate the death penalty, elsewhere as already in Europe.

As a reminder this Saturday, 10 October 2009, the World Day Against the Death Penalty, the joint statement by these European organisations:



Joint Statement by the Presidency of the European Union and the Chairmanship of the Committee of Ministers of the Council of Europe


Recognising the importance of the "World Day Against the Death Penalty", which has taken place on 10 October every year since 2003, the Swedish Presidency of the European Union and the Slovenian Chairmanship of the Committee of Ministers of the Council of Europe welcome the celebration of the third European Day Against the Death Penalty.

The Presidency of the European Union and the Chairmanship of the Committee of Ministers of the Council of Europe recall that the death penalty is contrary to the fundamental rights on which the European Union and the Council of Europe are founded.

The abolition of the death penalty is enshrined in Protocols Nos 6 and 13 to the European Convention on Human Rights and Fundamental Freedoms and reflected in Article 2 of the European Union Charter of Fundamental Rights. Abolition is a condition which States are required to meet in order to become members of the Council of Europe or the European Union.

The Presidency of the European Union and the Chairmanship of the Committee of Ministers of the Council of Europe share the vision of a death penalty-free European continent as a further step towards global abolition and stress the importance of persevering in the pursuit of actions aimed at abolishing the death penalty throughout the world, by making representations to third countries, acting within multilateral arenas and supporting the action of civil society towards this end.

***

Council of Europe


Here are two extracts from the Council of Europe’s Factsheet on the death penalty:


The Council of Europe was created to unite Europe around the shared principles of the rule of law, respect for human rights and democracy. The European Convention on Human Rights, which was adopted in 1950, states that everyone’s life shall be protected by law and no one shall be deprived of life. However, the Convention did allow the death penalty to be imposed when it was provided for by law.

In the early 1980s, the Council of Europe became a pioneer for the abolition of capital punishment, considering it to be a grave violation of human rights. The organisation’s Parliamentary Assembly gradually persuaded governments to help Europe become the first region in the world to permanently outlaw the death penalty. In 1982, the Council of Europe adopted Protocol No. 6 to the European Convention on Human Rights, which became the first legally-binding instrument abolishing the death penalty in peacetime. The protocol has today been ratified by 46 of the Council’s 47 member states; the one exception – Russia – has committed itself to ratification.

In 1989, abolition of the death penalty was made a condition of accession for all new member states. Since then, all countries are committed to introducing an immediate moratorium on executions and ratifying Protocol No. 6 when joining the organisation. A number of mechanisms have been set up to monitor the respect of those commitments while assisting governments with their implementation.

In 2002, an important step was taken by the Council to ban the death penalty in all circumstances with the adoption of Protocol No. 13 to the European Convention on Human Rights, which requires the complete abolition of capital punishment - even for acts committed in time of war.

As a result, there has not been a single execution in any of the member states of the Council of Europe for 10 years. Across Europe, only Belarus - which is not a member of the organisation - still uses capital punishment. The Parliamentary Assembly now wishes to extend prohibition to countries enjoying observer status with the Council, including Japan and the United States.

A resolution calling for a global moratorium on executions will be introduced at the 62nd session of the United Nations General Assembly, which begins on 18 September 2007. Its adoption would be a milestone towards the abolition of the death penalty worldwide.

-----------


What are the main points of Protocols No. 6 and No. 13 to the European Convention on Human Rights?

Protocol No. 6 to the European Convention on Human Rights abolishes the death penalty in peacetime. It came into force on 1 March 1985. With Protocol No. 6, Europe’s position changed from tolerating to prohibiting statutory killing. Protocol No. 13, which entered into force on 1 July 2003, bans the death penalty in all circumstances, including for crimes committed in times of war and imminent threat of war.

***


Fundamental rights in Europe


The Council of Europe has been a pioneer of human rights in Europe, most notably through the amended European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Court of Human Rights. .

The European Union has gradually adopted human rights principle, for instance by adopting the Charter of Fundamental Rights of the European Union, as a politically binding document on 7 December 2000.

The EU Treaty of Lisbon would make the EU Charter legally binding, and the European Union would accede to the pan-European Convention.



Ralf Grahn

EU Guidelines: Human Rights & Humanitarian Law

The European Union publishes a lot of useful information for students of politics, law and economics, as well as other interested EU citizens.

Many of the publications are available at the EU Bookshop in printed or digital form (pdf):

http://bookshop.europa.eu

I would like to draw attention to a recent publication issued by the Council of the European Union (General Secretariat of the Council) ‘EU Guidelines Human Rights and International Humanitarian Law’ (March 2009; 89 pages).

The publication is downloadable for free in English and French (Lignes directrices Droits de l’homme et Droit International Humanitaire).

The Guidelines serve not only international EU missions, but they contain a wealth of information useful for students, teachers, researchers and others interested in the human rights and humanitarian law.

Here is a look at the contents:

1. Death Penalty (1998) (updated on 2008)

2. Torture and other cruel, inhuman or degrading treatment or punishment (2001) (updated on 2008)

3. Human Rights dialogues with third countries (2001) (updated on 2009)

4. Children and armed conflict (2003) (updated on 2008)

5. Human Rights Defenders (2004) (updated on 2008)

6. Promotion and Protection of the Rights of the Child (2007)

7. Violence against women and girls and combating all forms of discrimination against them (2008)

8. Promoting Compliance with International Humanitarian Law (IHL) (2005)


***

Death penalty

Because misleading information about the European Union is continuously spread on the web, I recommend that everyone unsure about the EU’s position reads the Guideline on the death penalty.

The conspiracy theorists repeating the ‘footnote within a footnote’ distortions are, I presume, beyond redemption.



Ralf Grahn

EU reintroducing the death penalty?

Are these the words you would associate with an organisation bent on reintroducing the death penalty?

Here is the text from the Council of the European Union:

“COUNCIL OF THE EUROPEAN UNION
EN
Brussels, 25 April 2008
8767/08 (Presse 110)
P 57

Declaration by the Presidency on behalf of the EU concerning the death penalty in the USA

On September 11, 2007 the Ambassadors of the European Union in Washington appealed to the Governor of Kentucky, the Honorable Ernie Fletcher to spare the life of Mr Ralph Baze, whose execution would have broken a de facto moratorium that was in place within the State of Kentucky since 1999.

On 16 April 2008, the United States Supreme Court issued a ruling in Mr Baze's case which will allow the continued use of lethal injection as practiced by the State of Kentucky. The European Union notes with disappointment the United State Supreme Court's decision in this case and renews its call on Governor Fletcher to commute the
sentence of Mr. Baze.

The EU reiterates its longstanding position against the death penalty in all circumstances and accordingly strives to achieve its universal abolition, seeking a global moratorium on the death penalty as the first step. We believe that the elimination of the death penalty is fundamental to the protection of human dignity, and to the progressive development of human rights.

The EU recalls that on 18 December 2007, the United Nations General Assembly adopted a resolution on a Moratorium on the use of the death penalty, which explicitly calls upon all States that still maintain the death penalty to establish a moratorium on executions with a view to abolishing the death penalty

The EU recalls that any miscarriage or failure of justice in the application of capital punishment represents an irreparable and irreversible loss of human life. No legal system is immune from mistakes and there is no reliable evidence that the death penalty provides added value in terms of deterrence.

In light of this US Supreme Court decision, we strongly encourage the continuation of the de facto moratorium in place within the United States allowing the ongoing debate on the complex issues involved to be thoroughly deliberated.

The Candidate Countries Turkey, Croatia* and the former Yugoslav Republic of Macedonia*, the Countries of the Stabilisation and Association Process and potential candidates Bosnia and Herzegovina, Montenegro, Serbia, and the EFTA countries Iceland, Liechtenstein and Norway, members of the European Economic Area, as well as Ukraine, the Republic of Moldova and Azerbaijan align themselves with this declaration.

* Croatia and the former Yugoslav Republic of Macedonia continue to be part of the
Stabilisation and Association Process.”

***

The pan-European Council of Europe has pioneered the work to abolish the death penalty, and membership in the Council of Europe can be seen as part of the admission criteria for membership in the European Union. The goal has been to abolish the death penalty once and for all, but the work has advanced in stages.

First came the abolition of the death penalty in general, but left the possibility for member states to use it in war or when war was imminent.

***

The EU Charter of Human Rights was prepared by the first EU Convention led by Roman Herzog, following the conclusions of the European Council in Cologne in 1999. The Charter was declared politically binding by the EU institutions in Nice in December 2000.

***

The Council of Europe Protocol number 13 on the abolition of the death penalty in all circumstances was signed 3 May 2002, and it entered into force 1 July 2003 after ten ratifications, just days before the European Convention published its final text of the draft Constitution. Anyway, the European Convention adopted the 2000 Charter and the Explanations with mainly technical modifications.

The Treaty establishing a Constitution for Europe took over the Charter inserted into the Treaty (as Part II), with technical adjustments and some limitations concerning its scope. Many of the EU member states ratified the Council of Europe Protocol 13 later, the latest entry into force seems to be France, 1 February 2008.

***

Today, there are still three EU members which have signed, but not ratified the Protocol numbered 13 on the abolition under all circumstances: Italy, Poland and Spain.

In other words, it has not been possible for the EU to update its reference to the European Convention on Human Rights or the Explanations (basically by the first European Union Convention in 2000), even in the context of the Treaty of Lisbon, because it would not have been covered by all members by the way of the additions (protocols) to the Human Rights Convention of the Council of Europe.

***

But if every single member state of the European Union is not yet legally bound by the Protocol 13 on the total abolition of capital punishment, it does not mean that the European Union is about to make a U-turn and start reintroducing the death penalty.

***

To conclude: 24 out of 27 member states are individually bound by their commitments to the European Human Rights Convention. There has been no opportunity to update the EU Charter or its Explanations. The EU as an organisation is dead set against the death penalty. The press release above is only the latest manifestation of the political will of the European Union.

To allege that the European Union has, on purpose, left a backdoor open in the Constitutional Treaty or the Treaty of Lisbon with the intent to reintroduce the death penalty, is contrary to facts and unsupported in law.


Ralf Grahn


P.S. Correction, 25 April 2008: There seems to be a fourth laggard among the EU member states in ratifying Protocol 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances: Latvia. - So 23 have ratified and four are still lagging behind. I hope that I got it right this time around. :-)

EU against the death penalty

Is the European Union going to re-introduce the death penalty, as claimed as gospel truth by at least Wonko’s World, Why England Needs A Parliament, John Trenchard, PJC Journal and by now a host of other blogs read by thousands of impressionable readers?

None of the above seems to have done any research on their own, but they seem to have been more than willing to publish as a fact that the European Union ‘in a footnote of a footnote’ is making the death penalty possible.

By the look of it, the likely ultimate source is a June 2005 interview with Professor Karl Albrecht Schachtschneider in German, with the double headline ‘Europa nicht als Groβstaat, sondern als “Republik der Republiken” organiseren – Interview mit Prof. Karl Albrecht Schachtschneider über die EU-Verfassung’, posted on the web pages of BüSo, Bürgerrechtsbewegung Solidarität.

The interview contains a heading ‘Wiederkehr des Todesstrafe?’ (Return of the death penalty?), and Schachtschneider’s answer that Article II-62 of the Constitutional Treaty (and the Charter of Fundamental Rights) is untrue. His gives the explanations relating to the Charter as his reasons for two claims: 1) that there is no Constitutional protection of the right to life anymore in the case of war or imminent danger of war, and 2) that the death penalty is possible and will come.

***

Let us take a look at the EU position on the death penalty. Here is the political answer, the one which came out on top when I googled ‘EU death penalty’. The Delegation of the European Commission to the USA has a web page dedicated to ‘EU policy & action on the death penalty’. The following categorical statement can be found there:

“The European Union (EU) is opposed to the death penalty in all cases and has consistently espoused its universal abolition, working towards this goal.”

The web pages contain 73 links to various policy documents, action in the United Nations, action on US death row cases, European and international agreements and policy makers as well as archived documents relating to earlier years.

See for yourself:

http://www.eurunion.org/legislat/deathpenalty/deathpenhome.htm

Fairly conclusive for a normal person, one would think: The European Union is against capital punishment.

***

The motives and working ethics of bloggers like the above are such that I do not want to begin dissecting them.

But how is it possible that the EU institutions and the governments of the member states let such wildfires start and spread without actively, visibly and instantly rebutting malicious rumours devoid of factual basis?


Ralf Grahn

Cruel and unusual punishment?

The VIIIth Amendment of the Constitution (1787) of the United States of America states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The first ten Amendments, the Bill of Rights, were approved by Congress in 1789 and ratified effective 15 December 1791.

Whatever punishments were deemed to be “cruel and unusual” in late 18th Century Europe, the old Continent has moved towards the abolition of the death penalty.

In 1983 the members of the Council of Europe agreed on Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty.

Article 1 – Abolition of the death penalty

The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.

But the prohibition was not total.

Article 2 – Death penalty in time of war

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. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.

In 2002 the Council of Europe took the final step with Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances.

Article 1 – Abolition of the death penalty

The death penalty shall be abolished. No one shall be condemned to such penalty or executed.

Article 2 – Prohibition of derogations

No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.

Article 3 – Prohibition of reservations

No reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol.

Today a Europe of 46 states with 800 million inhabitants has freed itself from the death penalty.

How should “cruel and unusual” be understood in the 21st Century?

Ralf Grahn