Friday 25 April 2008

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:

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. :-)


  1. Thank you for clarifying this fact again. There's only one question left to be answered, I think. As soon as the EU joins the European Convention on Human Rights, does it mean that it ratifies Protocol 13 at the same time? I'm not sure about it. I think it would have to ratify the Protocol additionally.

  2. EU Law,

    Actually my two posts on the EU and the death penalty have come about on the side, almost reluctantly, partly because of questions and comments on (unrelated) blog posts and partly because of the preposterous wildfire of allegations based on unremitting propaganda from BüSo, based on a 2005 interview with Professor Schachtschneider. So I have not researched too deeply at this juncture.

    There must be those who know for sure, but my guess would be that the European Union would join the basic Human Rights Convention and all those additional protocols ratified by every member state.

    In principle, the version in force includes almost all of the protocols (until number 11, if my memory serves me), but I have not checked the status of each EU member state.

  3. You're right about Protocol #11:

  4. Grahn, As usual with anything EU, things are not quite so straightforward as you suggest. I quote:

    b) Article 2 of the Protocol No 6 to the ECHR:
    ‘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 a penalty shall be applied only in the instances laid down in the law and in accordance with its provisions…’.

    Please excuse my cynicism, but I have watched governments and especially the EU use every crack in the door that a piece of legislation allows, to advance a requirement. You say:

    The EU reiterates its longstanding position against the death penalty in all circumstances

    I say that if a provision exists such as
    A State may make provision in its law for the death penalty in respect of acts committed in ... imminent threat of war;

    Then who is to say that terrorism isn't imminent threat of war? We have already seen terrorism legislation misapplied when authorities had an overwhelming desire to pursue someone. and so down the slippery slope ...

    But also, maybe this Protocol has been superseded by something else? (I found the Protocol on

  5. Apologies; I think I have the answer to my own question. Article 13, being newer than article 6, supersedes it. Although it does beg the question, why leave article 6 in place to confuse mere mortals like me?

    From Press release Reference: IP/07/850 date 19/6/07

    Launching the European Day against the Death Penalty 19/6/07

    In the context of the Council of Europe, Protocol 6 to the European Convention on Human Rights (ECHR) unconditionally abolishes the death penalty in peacetime. All 27 European Union Member States have ratified Protocol 6. Protocol 13 to the same Convention prohibits the death penalty in all circumstances. Twenty two Member States have ratified Protocol 13; five Member States (France, Italy, Latvia, Poland and Spain) have signed but not yet ratified it.

    Similarly, Article 2(2) of the European Union Charter of Fundamental Rights prohibits the death penalty in the following terms: “No one shall be condemned to the death penalty, or executed”.

    As I understand things, the Lisbon treaty gives full legal powers to the European Charter of Fundamental Rights

  6. > why leave article 6 in place
    > to confuse mere mortals like me?

    I have wondered the same thing before, but the answer probably simply is that the EU-document that refers to Protocol 6 is only a reminder. As long as four Member States have not ratified Protocol 13 you have to keep Protocol 6 in mind when you judge on those four Member States.

    For all of the others there are no exceptions from the death penalty any longer, therefore for them the words of the EU-Charta are 100% binding. There are no exceptions for 23 of the Member States, so for them you do not need a reminder.

    If you mentioned Protocol 13 you would only repeat what the EU-Charta already says anyway.

  7. Alfred the Ordinary,

    I think that you answered your own question.

    As I tried to explain, securing fundamental rights at a higher level has been an ongoing process for nearly six decades within the Council of Europe.

    Step by step, higher standards have been established through amending protocols.

    Admittedly, it is confusing to wade through the material, but the main points are two: 1) the goal has been to reach higher standards protecting individuals, and 2) the territorial scope (the number of individuals protected) has increased dramatically since the fall of the Berlin Wall.

    If you want the most up-to-date information, ou can go to

    and click Human Rights, then choose the Convention.

    There you find the Convention, as amended, the separate protocols, summaries, ratifications etc.

    The Treaty of Lisbon does two things concerning fundamental rights for citizens: 1) the Charter becomes legally binding on the EU institutions and on the member states when they implement EU legislation, and 2) the European Union is going to accede to the European Council Convention.

  8. Unfortunately I can not follow. The Treaty to agree includes parts which are not to be agreed? Actually, when The Treaty is ratified by all member states, this part of the deal will be changed to another?

    I agree with your opinion about long run for abolition of death penalty, or other (riot suppressing cases etc.), but still I just watch The Treaty and that is all what matters. After your comments I was left with uncertainty about ratification of this charter also.

    Unfortunately I do not share same trust to eurocrats AND I think this kind of issues should be solved and clarified earlier, not later. Is my concerns to be considered..


Due deluge of spam comments no more comments are accepted.

Note: only a member of this blog may post a comment.