Wednesday 16 April 2008

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:

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


  1. It may well be the case that the EU's leadership is currently against the death penalty, but this is irrelevant.

    In a debate about this constitution/treaty, we need to think about long term institutions and safeguards. Can you tell me whether this document could be used to force the death penalty on a country? Could a Passerelle clause allow heads of government to introduce the death penalty over the heads of the state's parliament? I suspect so, and I haven't read seen anything in this blog piece to make me think otherwise.

  2. Aaron McDaid,

    My blog post referred to scores of political and legal documents which contradict your suspicions.

    In addition, I suggest that you familiarise yourself with the legal procedures required for the 'passerelle' procedures. Over the heads of national parliaments does not wash.

    Finally, how could any 'passerelle' clause even apply to a situation based on your suspicions?

  3. Thanks for the response. I read the document a few years ago when it was still officially the European Constitution, so I must admit I'm not fully up to date on what may have changed. Also, when I read it I wasn't thinking explicitly about the death penalty, so I can't be certain. But the power of the Council of Ministers to force a move to QMV in huge policy areas is undemocratic. I do clearly remember the document being quite broad in reach but also quick ambiguous, leaving the EU courts the option to control more and more.

    In the areas covered by Passerelle clauses, is it not the case that heads of government (the Council of Ministers) can make a decision to introduce QMV without requiring authorization/ratification from home?

    The people of the US would never accept the state governers being able to meet secretly and rewrite the US constitution! The fact that you mentioned the current anti-death-penalty stance of the current leading politicians is itself a worrying sign - is there an attempt to distract from the powers being transferred to Brussels?

    The EU is confusing the people deliberately. On the one hand it behaves like a partisan political party ("we're against the death penalty" currently), but then it tries to look like a state-like institution with a constitution. I want to be able to vote for or against a real constitution with a long term outlook. I don't want to be asked to vote for an institution simply because I may like the current imcumbent.

    Essentially, the problem I have with the EU is that it is run by the governments directly. A more democratic approach would be for the EU Parliament and/or the state parliaments to have the powers. The Council of Ministers should not be able to take a decision without authorization or ratification from home.

    Many states have spent decades or centuries building up safegaurds to limit their heads of government, now the EU are removing this at a stroke.

    One issue here is the question as to whether the death penalty specifically can be imposed. If so, this treaty must be blocked (even if the current EU has no intention of using that power). If not, then we shouldn't forget that the EU can do this in many other areas.

    The EU has taken more and more powers, hidden in long ambiguous documents, interpreted loosely by European courts. As a citizen, I make no apology for being cautious.

  4. you could do better in finding what caused this myth specifically and debunking it

    1950 Rome convention on fundamental rights and freedoms, whose powers of subsidiarity are commited to in the charter, are highlighted.

    The 1950 rome convention states:

    "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 absolutly necessary in defense of any person from unlawful violence".

    This implies killing in self defense, which is acceptable, is allowed. However the right to life is expanded upon further by stating "in action lawfully taken for the purpose of quelling a riot or insurrection".

    He noted that there is a 1983 protocol in the 1950 rome convention that goes even further as follows:

    agree that a professional should check this out . There is a 2002 protocol that seems to shut down the loophole in the 1983 Protocol No.6 which did indeed seem to allow member states to potentially use the death penalty in times of war or imminent war .

    "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 . Vilnius, 3.V.2002

    "Noting that Protocol No. 6 to the Convention, concerning the Abolition of the Death Penalty, signed at Strasbourg on 28 April 1983, does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war.

    The explanatory notes say Protocol 13.....
    "entails the obligation to abolish this penalty in all circumstances, including for acts committed in time of war or of imminent threat of war. The second sentence of this article aims to underline the fact that the right guaranteed is a subjective right of the individual.“to abolish this penalty in all circumstances, including for acts committed in time of war or of imminent threat of war.”


  5. Anonymous,

    Thank you for your clarifications.

    I first hoped to see that the EU institutions or member states' governments would take care of their own defence.

    When I saw no reaction, I reluctantly decided to write a short post with a limited aim:

    To show what the EU has said and done politically; enough in my mind for most reasonable persons.

    I do not have the time or inclination to deal with every question in an exhaustive manner, which I hope that you understand.

  6. I agree with your assessment of the Death penalty.

    The anti-EU camp are simply trying to drum up support for an issue which in reality, is not an issue.

    I find it simply scaremongering on their part.

  7. So we're back to square one it seems. Nobody has anything to say on whether or not this treaty will make it easier for the EU to impose the death penalty. This is the issue.

    The document (and how the courts will treat it) is the only relevant concern here. It's a red herring to distract voters with talk of the current opinions of current officials and politicians in the EU structures.


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