Thursday 26 August 2010

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

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  1. Legal curiosity from Germany. The State of Hesse (e.g. where Frankfurt is) actually still has the possibility of the death penalty in its Constitution, too. Of course it couldn't be carried out as Federal crime law supersedes regional. Still, I wonder why the Hessian parliament never changed that article 21.

  2. Martin,

    Perhaps you should ask them, why they have left an outdated provision on their statute book.


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