Doc. 9908

11 September 2003

Abolition of the death penalty in Council of Europe observer states

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mrs Renate Wohlwend, Liechtenstein, PPE/CD

Summary

Two years ago, the Parliamentary Assembly adopted its last resolution, recommendation and order on the abolition of the death penalty in Council of Europe observer states. At the time, the Assembly found Japan and the United States of America in violation of their obligations under Statutory Resolution (93) 26 and consequently required Japan and the United States of America to institute without delay a moratorium on executions and take the necessary steps to abolish the death penalty. At the same time, the Assembly resolved to take all necessary measures to assist Japan and the United States in their endeavours, in particular by promoting parliamentary dialogue in all forms.

The Assembly has been successful in initiating a dialogue with Japanese parliamentarians, in particular with the Diet members’ League for the abolition of the death penalty. Unfortunately, while the dialogue with Japanese parliamentarians is fruitful and ongoing, Japan has not yet abolished the death penalty and has carried out four executions since June 2001. An abolition bill, while gaining growing support, has not yet mustered the votes needed to pass the Diet.

In contrast, the Assembly has largely failed in its efforts to promote transatlantic parliamentary dialogue. The number of abolitionist American jurisdictions has remained low at 13, while Illinois remains the only jurisdiction applying a moratorium on executions. Since June 2001, 137 executions have been carried out in 17 American jurisdictions, including at the federal level.

In view of this rather mixed success, the Assembly should require of Japan and the United States of America to make more of an effort to take the necessary steps to institute a moratorium on executions with a view to abolishing the death penalty. The Assembly should continue its efforts to promote and deepen dialogue with the two observer states concerned, and enlist the support of the Committee of Ministers in order to encourage rapid progress on the issue, as it is becoming increasingly difficult for the Council of Europe to accept that observer states make use of the death penalty.

I.       Draft resolution

1.       The Parliamentary Assembly of the Council of Europe refers to Resolution 1253 (2001) and Recommendation 1522 (2001) on the abolition of the death penalty in Council of Europe observer states.

2.       The Assembly once more reaffirms its complete opposition to capital punishment, which has no legitimate place in the penal systems of modern civilised societies. The Assembly considers that the application of the death penalty constitutes torture and inhuman and degrading punishment and is thus a severe violation of universally recognised human rights.

3.       Under Statutory Resolution (93) 26 on observer status, a state wishing to become a Council of Europe observer state has to be willing to accept the principles of democracy, the rule of law and the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms. Japan and the United States of America (both granted observer status in 1996) keep the death penalty on their statute books and carry out executions. For this reason, the Assembly found Japan and the United States of America in violation of their obligations under Statutory Resolution (93) 26 in Resolution 1253 (2001) adopted on 25 June 2001.

4.       In that Resolution, the Assembly consequently required Japan and the United States of America to institute without delay a moratorium on executions and take the necessary steps to abolish the death penalty. At the same time, the Assembly resolved to take all necessary measures to assist Japan and the United States in their endeavours, in particular by promoting parliamentary dialogue in all forms. In Recommendation 1522 (2001), the Assembly recommended that the Committee of Ministers proceed in the same way at governmental level.

5.       The Assembly has been successful in initiating a dialogue with Japanese parliamentarians, in particular with the Diet members’ League for the abolition of the death penalty. In May 2002, the Assembly’s Committee on Legal Affairs and Human Rights, in cooperation with the League, organised a conference on “Justice and human rights in Council of Europe Observer States” in Tokyo, which took the abolition debate to the highest levels of Japanese politics. Unfortunately, while the dialogue with Japanese parliamentarians is fruitful and on-going, Japan has not yet abolished the death penalty and has carried out four executions since June 2001. An abolition bill, while gaining growing support, has not yet mustered the votes needed to pass the Diet.

6.       In contrast, the Assembly has largely failed in its efforts to promote transatlantic parliamentary dialogue. A conference on “Justice and human rights in Council of Europe Observer States” organised by the Assembly’s Committee on Legal Affairs and Human Rights in the USA in April 2003 attracted few Illinois state parliamentarians in Springfield (despite the valued support of the Illinois State Senate President and prominent abolitionist politicians), and none in Washington DC. The number of abolitionist American jurisdictions has remained low at 13, while Illinois remains the only jurisdiction applying a moratorium on executions. Since June 2001, 137 executions have been carried out in 17 American jurisdictions, including at the federal level.

7.       The Assembly thus regrets to have to find Japan and the United States, once more, in violation of their fundamental obligation to respect human rights under Statutory Resolution (93) 26, due to their continued application of the death penalty.

8.        The Assembly thus requires of Japan and the United States of America to make more of an effort to take the necessary steps to institute a moratorium on executions with a view to abolishing the death penalty.

9.       The Assembly asks Japan (both parliament and government) to continue and deepen its constructive dialogue with the Council of Europe on this issue. In the meantime, it reiterates its demands that the conditions on “death row” be immediately improved, that the secrecy surrounding executions be ended and the access to post-conviction and post-appeal judicial review be broadened for “death row” inmates.

10.        The Assembly asks the United States of America (both parliament and government, at federal and state level) to enter into a more constructive dialogue with the Council of Europe on this issue. It encourages American politicians to create abolitionist “caucuses” in their respective parliamentary assemblies, and to continue to engage opponents of abolition in informed debate.

11.       The Assembly supports the American political and NGO movement aiming at putting into place moratoria on executions and restricting the application of the death penalty (in particular, against juvenile defendants and foreign nationals), as well as efforts to reinforce legal guarantees and due process in these cases.

12.        The Assembly thus decides to intensify its dialogue with parliamentarians from Japan with a view to encouraging rapid progress on the institution of a moratorium on executions and the abolition of the death penalty, and to continue its efforts to enter into a dialogue with parliamentarians from the United States of America (both state and federal) with a view to supporting them in their endeavours to institute moratoria on executions and abolish the death penalty.

13.        The Assembly resolves to debate the abolition of the death penalty in Council of Europe member and observer states whenever the necessity arises, on the decision of the Bureau, and, in any case, at the latest in the year 2005.

II.       Draft recommendation

1.        In Recommendation 1522 (2001) on the abolition of the death penalty in Council of Europe observer states, the Parliamentary Assembly recommended that the Committee of Ministers initiate a dialogue with Japan and the United States of America on the Assembly’s requirements of immediately improving conditions on “death row” and instituting without delay a moratorium on executions with a view to the future abolition of the death penalty in both countries.

2.       The Committee of Ministers of the Council of Europe proceeded to an exchange of views with the participation of observer delegations in the presence of the Assembly’s Rapporteur, Mrs Wohlwend, on 20 March 2002. 0n 13 June 2002, it adopted a reply to Recommendation 1522 (2001); in its decision, the Committee of Ministers noted it was of course open to a dialogue with Japan and the USA on the issue with a view to overcoming a possible “value gap”.

3.       In Resolution its. … (2003) on the abolition of the death penalty in Council of Europe observer states, the Assembly found Japan and the United States once more in violation of their fundamental obligation to respect human rights under Statutory Resolution (93) 26, due to their continued application of the death penalty.

4.        The Assembly regrets the absence of transatlantic parliamentary dialogue and wishes to deepen the on-going transpacific parliamentary dialogue. It considers, furthermore, that observer states have a moral obligation to engage in dialogue with the Council of Europe on matters of common concern, in particular the respect of human rights. In fact, dialogue is only the first, minimum requirement – eventually, such dialogue must also bear fruit.

5. The Assembly therefore recommends that the Committee of Ministers:

III.       Draft explanatory memorandum

      by Mrs Renate Wohlwend, Rapporteur

A.        Introduction

1.       In June 2001, after a lively debate, the Parliamentary Assembly adopted a Resolution (No 1253), a Recommendation (No 1522) and an Order (No 574) on the abolition of the death penalty in Council of Europe Observer States. By virtue of these adopted texts, the Assembly found Japan and the United States of America to be in violation of their obligations under Statutory Resolution (93) 26, since they continue to keep the death penalty on their statute books and carry out executions – a grave violation of human rights.

2.       Consequently, the Assembly required Japan and the United States of America to institute without delay a moratorium on executions, and take the necessary steps to abolish the death penalty. At the same time, the Assembly resolved to take all necessary measures to assist Japan and the United States in their endeavours, in particular by promoting parliamentary dialogue in all forms. The Assembly recommended that the Committee of Ministers do likewise at the governmental level.

3.       The Assembly decided to call into question the continuing Observer status of Japan and the United States with the organisation as a whole, should no significant progress in the implementation of the Assembly’s demands be made by 1 January 2003. The Committee on Legal Affairs and Human Rights was asked to report back to the Assembly on the progress, or lack of progress, following the expiration of the deadline. The deadline having expired, it is my duty to bring my evaluation of developments since June 2001 to the Committee now, and – ultimately – to the Assembly, so that the necessary action can be taken to further our cause – the abolition of the death penalty in all Council of Europe Observer States.

B.       Developments with regard to the abolition of the death penalty in Council of Europe Observer States since June 2001

4.       Encouraging developments with regard to the abolition of the death penalty in Council of Europe Observer states have, unfortunately, been few and far between in both Japan and the United States of America – but there have been some, despite some major setbacks as well (in particular in the context of the “war on terrorism” provoked by the gruesome terrorist attacks of 11 September 2001). In the following, I will try to enumerate the basic facts:

a.        Japan

5.        There have been four executions in Japan since June 2001. Toshihiko Hasegawa and Kojiro Asakura were executed on 28 December 2001, and Yoshiteru Hamada and Tatsuya Tamoto on 18 September 2002.

6.        There is considerable secrecy surrounding the preparations for executions, and the dates seem to be chosen deliberately: the executions tend to be held when the Diet and public opinion would appear to be at their least attentive to the government’s actions, clearly in an attempt to avoid parliamentary or public debate.

7.        The Minister for Justice, both in her address to the participants at the seminar the Committee organised in Tokyo in May 2002 (see p. 5) and during her talks with the President of the Assembly in February 2003 restated the Japanese government’s firm and incontrovertible position on the death penalty. According to her, Japan, has no intention of abandoning this practice, at least until the Diet passes other provisions in this regard.

8.        Despite the joint efforts of the Parliamentary League for the Abolition of the Death Penalty (“the League”) and the Federation of Japanese Bar Associations, the Diet has not yet debated the bills to introduce a moratorium on executions and to abolish the death penalty.

9.        The Federation of Bar Associations submitted its recommendations on reforming the system in force, calling for a moratorium until broad public debate had taken place. So far, such a debate has not yet begun. Which is why, perhaps, the League is about to circulate a bill among Diet members, proposing the setting up of a Diet committee of enquiry and a moratorium on the death penalty, and at the same time introducing a number of amendments to the Criminal Code – making provision for stricter life sentences – the amnesty law and the law on juvenile delinquents.

10.        Members of both the Diet and the executive are keen not to be dictated to from outside but they are aware of the inconsistencies in the system of sentences. They give the impression of actively seeking a means of reaching a provisional and reasonable solution, with the clear aim of not presenting public opinion with a decision imposed upon it.

11.       In a positive development, a delegation of Japanese parliamentarians received the authorisation of the Justice Minister on 22 July 2003 to visit certain execution chambers in Tokyo1. The parliamentarians, members of the Legal Committee, will apparently be the first outsiders to inspect chambers since 1973.

12.        It should be borne in mind that Japan is one of the countries with the lowest execution rates. There is no possible comparison between the number of executions in Japan and in the United States.

b.        United States of America

13.        Since 25 June 2001, 137 executions2 have been carried out in 17 jurisdictions of the United States of America, including on the federal level – bringing the total number of executions in the USA since the resumption of executions in the country in 1977 to 8583. The executing jurisdictions were: Texas, Virginia, Oklahoma, Missouri, Florida, Georgia, South Carolina, Louisiana, Alabama, North Carolina, California, Indiana, Ohio, Mississippi, New Mexico, Washington (state) and the Federation. All in all, 40 jurisdictions in the USA have death penalty statutes4, 13 have not5 (in a new development, according to the latest court ruling, the federal death penalty also applies in Puerto Rico).

14.        Texas was the only jurisdiction in the world known to have executed a juvenile offender in 2002: three black juvenile offenders were put to death, Napoleon Beazley, T. J. Jones and Toronto Patterson. Oklahoma followed suit on 3 April 2003, executing Scott Hain for a crime he committed when he was 17 years old. Some 80 juvenile offenders remain on death row across the USA. As I already clearly stated in my last report, the execution of juvenile offenders is not only a particularly heinous practice, but also clearly in violation of international law6.

15.        Since 1993, nineteen foreign nationals have been executed in the United States of America, virtually none of them were informed – in violation of international law – of their rights to communicate with their consular representatives; over 100 foreign nationals remain on death row. The Council of Europe observer state Mexico sought a court order from the International Court of Justice in January 2003 to stop the execution of over 50 Mexican citizens in the US until judges decide the case7.

16.        However, there have also been positive developments: Since the re-introduction of the death penalty in the USA in 1976, 108 death row inmates have been exonerated on the grounds of actual innocence across the country; the latest man to be freed was John Thompson of Louisiana. The US Supreme Court, in its ruling of Atkins v. Virginia of 20 June 2002 banned the execution of those with mental retardation8, and the moratorium/research commission movement has been gathering steam. Currently, only one state has an official moratorium on executions in place: Illinois.

17.        On 11 January 2003, outgoing Illinois Governor George Ryan emptied the state’s death row by commuting the death sentences of 167 prisoners. He said: “Our capital system is haunted by the demon of error – error in determining guilt, and error in determining who among the guilty deserves to die”. Governor Ryan had already halted all executions in the state three years earlier, after courts found that 13 Illinois death row inmates had been wrongly convicted since capital punishment resumed in 1977 – a period during which 12 other inmates were executed. The blanket commutation of death sentences drew mixed reactions, both locally, across the Unites States, and internationally. While locally and internationally, there were many voices of support, the commutation also came in for a lot of criticism in view of its “blanket” nature, and not only from murder victim’s families. The in-coming Governor, Rod Blagojevich, criticised the commutation, but pledged to uphold the moratorium.

18.       In Maryland, Governor Parris Glendening declared a halt to all executions in his state on 9 May 2002, pending release and General Assembly review of a study of racial bias then in progress at the University of Maryland College Park. He did not follow Governor Ryan’s example of commuting all death sentences, however, and the new Governor Ehrlich lifted the moratorium in January 2003, just days after his inauguration, after the study was released. An “emergency moratorium” bill died on the Senate floor with a 23-24 vote in March 2003.

19.        In North Carolina, the Senate passed a bill on 30 April 2003 that imposes a two-year moratorium on executions while the state’s death penalty is examined – but the bill is still pending in the House of Representatives. Even in Texas, the state which executes the most defendants in the USA, a bill creating an “Innocence Commission” has passed the Senate and is pending before the House.

20.       On both federal and state level, there have been attempts to reform the death penalty. There has been a major shift in criminal justice legislation over the past decade in the United States, in large part due to the phenomenon of DNA exonerations and innocent people being freed from death row. It is obvious from the extensive press coverage that the issue of wrongful convictions has played and will continue to play a big role in the American political arena. Initially, only New York and Illinois had legislation dealing specifically with post-conviction DNA testing. Currently, thirty states have enacted statutes addressing post-conviction DNA testing9.

21.       On the federal level, the Innocence Protection Act (IPA) was reintroduced in the Senate at the beginning of the year as part of a larger bill addressing justice and homeland security issues. In the previous Congress, the IPA garnered support from more than half of the members of the House, and was passed out of the Senate Judiciary committee. The IPA would improve access to DNA evidence for those facing the death penalty, authorise funding to improve counsel in capital cases, increase compensation for individuals wrongfully accused, and condition some federal grants to the states based on their performance in providing competent counsel. The groundbreaking bill would also provide grants to qualified capital defender organisations and encourage better representation through student loan forgiveness programs for public attorneys.

22.        In Illinois, lawmakers recently approved sweeping death penalty reforms and have sent the legislative package to the new Governor, Rod Blagojevich, for signature into law, who has, apparently, signed part of the package on 17 July 2003. The reforms, based on the recommendations made by the Illinois Commission on Capital Punishment set up by the previous Governor, George Ryan, are designed to eliminate the many flaws in the state’s investigation, prosecution and sentencing system that put so many innocent people on the state’s death row. Although Governor Blagojevich is expected to sign the reforms into law, he has noted that he feels they do not go far enough to protect against the possibility of executing an innocent person. He thus continues to support the moratorium. In the words of Representative Arthur Turner, whose abolition bill in the House of Representatives unfortunately did not gather enough support to be enacted, “If I’m not around [in the legislature] five years from now, you can say that Art Turner said that those reforms are not going to change a damn thing.”10

23.        Representative Turner might be on to something. Nationwide, despite the on-going “war against terrorism” and heightened security threat in the USA after the ghastly terrorist attack of
11 September 2001, public opinion has been developing in a surprisingly consistent, direction. According to a Gallop poll of 19 May 2003, Americans are very closely split on the proper sentence for convicted murderers. Only 53% of respondents favoured the death penalty over life without parole, down from 61% in 1997. The higher the education of the respondent, the less likely he or she is to support the death penalty. For the time being, however, the reformist movement still holds the upper hand over the abolitionist movement in the United States of America.

C.       Dialogue with the Parliamentary Assembly and the Committee of Ministers

24.       Observer States have a moral obligation to engage in dialogue with the Council of Europe on matters of common concern, in particular the respect of human rights. Otherwise, it makes no sense to grant Observer status to a country. In fact, dialogue is only the first minimum requirement of successful co-operation – eventually, such dialogue must also bear fruit.

a.       Japan

25.       The Assembly has been successful in initiating a dialogue with Japanese parliamentarians, in particular the Diet members’ League for the abolition of the death penalty.

26.        The Assembly has succeeded in getting dialogue going with Japanese parliamentarians, notably those who are members of the Parliamentary League for Abolition of the Death Penalty (“the League”). In association with the League it held a seminar in Japan, in the House of Representatives buildings, on 27 and 28 May 2002 (the report on this seminar, AS/Jur/DH (2002) 03, is available from the Secretariat upon request). The seminar was attended by over 200 people, a good 40 of whom were members of parliament. The Speakers of the two Houses, together with the Minister of Justice, honoured the seminar with their presence. The Chair of the House of Representatives Foreign Affairs Committee also attended. The exchange of views was candid, and can genuinely be seen as a start to open dialogue between Council of Europe parliamentarians and the Japanese legislature and executive.

27.        The President of the Assembly continued the dialogue during his official visit to Japan from 11 to 16 February 2003, in which he had talks with the Speakers of both Houses, the Minister of Justice and the Chair of the House of Councillors Legal Affairs Committee. During his visit he underlined that he had been impressed with the honesty of the exchanges and by being able to speak frankly with his interlocutors.

28.        Although contact with the League continues through the respective secretariats, the Assembly has reason to regret that the Japanese observer delegation at the debate on OECD activities was unable to have an exchange of views with its Committee on Legal Affairs and Human Rights or Sub-Committee on Human Rights during the September 2001 part-session or

the September 2002 part-session. However a Japanese member of parliament, Ms Fukushima, who is a member of the League, took part in the June 2001 debate on the abolition of the death penalty in Council of Europe Observer states.

29.        Given the impact on public opinion and the support for the League which the seminar generated, it might be a good idea, as a further stage in the dialogue, to hold another similar seminar in two years’ time. In fact, there have been indications from the Japanese side that a further seminar on the issue would be welcomed even earlier, in particular if it were aimed at the media and academia.

30.        During his official visit to Japan from 18 to 22 March 2002 the Secretary General of the Council of Europe spoke up for the Council of Europe’s work on abolition of the death penalty, whereas the Committee of Ministers, with participation by delegations of observer countries, merely had an exchange of views with me, in my capacity as rapporteur, on 20 March 2002. Dialogue between Japan and the Committee of Ministers thus needs stepping up considerably to be worthy of the name.

b.       United States of America

31.       In contrast, the Assembly has largely failed in its efforts to promote transatlantic parliamentary dialogue on this question. No American parliamentarian attended the June 2001 debate on the abolition of the death penalty in Council of Europe observer states. The Chairman of the House of Representatives Judiciary Committee, Congressman F. James Sensenbrenner Jr, did not accept the invitation of our Committee to an exchange of views during the September 2001 part-session, on the occasion of his visit to Strasbourg at that time. (He did, however, agree to have lunch with our then Chairman, Mr Jansson).

32.        In contrast, the Committee has been able to build up a very good working relationship with key international and American NGOs and committed individuals, such as Amnesty International and Amnesty USA11, the Death Penalty Information Centre, the National Center for Wrongful Convictions (Chicago) and the Illinois Coalition against the Death Penalty. It is mainly thanks to them, and to a few state and federal parliamentarians, such as the President of the Illinois State Senate, Senator Emil Jones Jr., Mrs Lisa Groesch, the Director of the Illinois Commission on Intergovernmental Cooperation, and Federal Senator Russ Feingold, that the Committee succeeded in organising a Conference on “Justice and Human Rights in Council of Europe observer states: the abolition of the death penalty) in Springfield (Illinois) and Washington DC (USA) on 9-11 April 200312.

33.        In contrast to the sister conference organised by the Committee in Japan a year earlier, however, this conference cannot be termed a great success. In both Springfield and Washington DC, the excellent speakers were mainly preaching to the converted. The Springfield conference, which 11 Illinois Congressmen and –women attended (at sporadic intervals) was hampered by the fact that the Illinois Governor chose 9 April 2003 to deliver his long-awaited budget address to a joint sitting of the House and the Senate. However, some dialogue did develop during the conference with those Congressmen and –women who attended the Conference nevertheless, which was held in a beautiful hall in the Illinois Senate building at the kind invitation of President Emil Jones Jr. Unfortunately, no parliamentary dialogue at all was possible in Washington DC, where not a single Congressmen or –woman turned up. And this despite Congress being in session and the conference being held in a Senate building at the kind invitation of Senator Russ Feingold.

34.        I must conclude that there is little willingness on the American side to engage in parliamentary dialogue with us, their European colleagues, on this important issue. In fact, this is not the only issue where this problem arises: our Committee is currently working on a number of reports which pose the same problem. I do want to underline here that I think that in Illinois, there

was some interest in a transatlantic parliamentary dialogue; Illinois is, in fact, a good example for other states to follow. However, our Committee cannot organise conferences in the other 37 states which retain the death penalty; and in Washington DC, where the decision about the federal death penalty is taken, we were certainly not made to feel welcome!

D.       Conclusions

35.       The Parliamentary Assembly has had a clear position on the death penalty for decades. The Assembly is opposed to capital punishment in all circumstances, and considers that it has no place in the penal systems of modern civilised societies. The application of the death penalty constitutes torture and inhuman and degrading punishment. It is a severe violation of universally recognised human rights.

36.       According to Statutory Resolution (93) 26 on Observer status, “any state willing to accept the principles of democracy, the rule of law and the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms …, may be granted … Observer status with the Organisation”.

37.       Japan and the United States were both granted observer status with the Organisation in 1996, before the Council of Europe’s position on capital punishment had been written in stone. Since 1997, the Council of Europe is a de-facto death penalty-free zone, and proud of it. In fact, the Organisation’s opposition to capital punishment in all circumstances has become a cornerstone of its human rights policy with the opening for signature, on 3 May 2002 of Protocol No 13 to the European Convention on Human Rights. Were Japan and the United States to apply for observer status with the organisation today, I doubt they would be granted it.

38.       As the application of the death penalty is so incompatible with the Organisation’s core values, does this mean that, in accordance with Article VIII of Statutory Resolution (93) 26 on Observer status, the Committee of Ministers should suspend or withdraw the observer status of Japan and the United States?

39.       Observer states are entitled to “participate in” most of the Council of Europe’s work and activities. They may appoint a permanent observer to the Council of Europe. In practice, observer status allows states outside the geographical boundaries of Europe, but with strong ties to Europe based on shared values, to be informed of and even influence the Council of Europe’s work. Observer status is not a one-way street, however: it is designed to also allow the Council of Europe to be informed of and even influence the policies of Observer states in areas of common concern, in particular human rights. Fruitful dialogue is the key to successful co-operation between the Council of Europe and its Observer states.

40.       What should the Council of Europe do when one of its Observer states – the United States of America – refuses to enter into a dialogue with the Organisation on a crucial human rights issue such as the abolition of the death penalty? What should it do when another one of its Observer states – Japan – is willing to engage in dialogue, but unwilling to take any concrete action?

41.       The goal of the Council of Europe must be to influence its Observer states in a positive way, i.e. to eventually convince Japan and the United States of America to, at least, institute a moratorium on executions, and – eventually – to abolish the death penalty. The Council of Europe will only reach this goal if it manages to engage Japan and the United States in informed debate. In Japan, the willingness to engage in this debate is evident, at least at parliamentary level, even if the Council of Europe’s final goal has not yet been reached. In the United States of America, sadly, there seems to be no willingness to engage in this debate, at least not at federal parliamentary level.

E.       Recommendations

42.       Consequently, I feel that the Assembly should recommend to the Committee of Ministers to:

43.       These recommendations do not preclude further action on this issue by the Assembly itself. On the contrary, I am convinced that these recommendations help the Assembly – in particular the Committee on Legal Affairs and Human Rights – intensify its dialogue with Japanese parliamentarians with a view to encouraging rapid progress on the abolition of the death penalty. Likewise, the Assembly should continue its efforts to enter into a dialogue with US parliamentarians (both state and federal) with a view to supporting them in their endeavours to institute moratoria on executions and abolish the death penalty. In particular, the Assembly could encourage the setting-up of “abolitionist caucuses” in state and in federal parliaments, modelled on the Diet members’ League for the abolition of the death penalty.

44.       In addition, the Assembly itself should support the American and Japanese political and NGO movement aiming at putting into place moratoria on executions and restricting the application of the death penalty, as well as efforts to reinforce legal guarantees and due process. The current political climate might not seem favourable to rapid progress on this issue, but that should not discourage the Assembly from doing its utmost to help those who defend the Council of Europe’s values in the USA and Japan.

45. In order to strengthen the co-operation between the Committee of Ministers and the Parliamentary Assembly, the Committee of Ministers should report on its activities since its written reply on Recommendation 1522 (2001) of 19 June 2002. The Parliamentary Assembly – in particular the Committee on Legal Affairs and Human Rights – can reach its goal, that is, to install a moratorium in the first place, and to abolish the death penalty in the second place, only in close co-operation with the Committee of Ministers.

46.       The Assembly should keep a close watch on the situation and debate the issue again in two years’ time, when - hopefully - some progress will have been made on this crucial human rights issue.

*****

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Order 574 (2001)

Draft resolution and draft recommendation unanimously adopted by the Committee on
1st September 2003

Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Akçam, Mr Alibeyli (alternate: Mr R. Huseynov), Mrs Arifi, Mr Arzilli, Mr Barquero Vázquez, Mr Berisha, Mr Bindig, Mr Brecj, Mr Bruce, Mr Chaklein, Mrs Christmas-Mĝller (alternate: Mrs Auken), Mr Cilevics, Mr Clerfayt, Mr Contestabile, Mr Daly, Mr Davis, Mr Dees, Mr Dimas, Mrs Domingues, Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mrs Frimansdóttir, Mr Frunda, Mr Galchenko, Mr Guardans, Mr Gündüz, Mrs Hajiyeva, Mrs Hakl, Mr Holovaty (alternate: Mr Shybko), Mr Ivanov, Mr Kalezić, Mr Kelber (alternate: Mrs Hoffmann), Mr Kelemen, Mr Kontogiannopoulos, Mr S. Kovalev, Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Livaneli, Mr Malins, Mr Manzella, Mr Martins, Mr Mas Torres, Mr Masson, Mr McNamara, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mrs Pasternak, Mr Pehrson, Mr Pellicini (alternate: Mr Budin), Mr Pentchev, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Prica, Mr Pullicino Orlando, Mr Raguz, Mr Ransdorf, Mr Rochebloine, Mr Rustamyan, Mr Skrabalo, Mr Solé Tura (alternate: Mrs Lopez Gonzalez), Mr Spindelegger, Mr Stankevic, Mr Stoica, Mr Symonenko, Mr Tabajdi, Mr Takkula, Mrs Tevdoradze, Mr Toshev, Mr Vanoost, Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the Committee: Ms Coin, Mr Schirmer, Mr Ćupina, Mr Milner

1 Newsletter “Mail de l’abolition n° 6”, ECPM, 25 July 2003.

2 From 25 June 2001 – 31 December 2001: 28 executions, in 2002: 71 executions, in 2003 so far: 38 executions.

3 Last updated with the execution of Joseph Trueblood in Indiana in June 2003.

4 The numbers have not changed since my last report - 38 states: Alabama, Arizona, Arkansas, California, Colorado, Connecticut (no executions since 1976), Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas (no executions since 1976), Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire (no executions since 1976), New Jersey (no executions since 1976), New Mexico, New York (no executions since 1976), North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota (no executions since 1976) Tennessee, Texas, Utah, Virginia, Washington, Wyoming; and the US Federal Government and the US Federal Military (no executions since 1976).

5 12 states - Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin; and the District of Columbia.

6 The Inter-American Commission on Human Rights concluded in October 2002 in the case Michael Domingues v. United States, (Case 12.285) that the USA “has acted contrary to an international norm of jus cogens as reflected in Article I of the American Declaration [on the Rights and Duties of Man] by sentencing Michael Domingues to the death penalty for crimes that he committed when he was 16 years of age” and that “should the State [the USA] execute Mr. Domingues pursuant to this sentence, it will be responsible for a grave and irreparable violation of Mr. Domingues’ right to life under Article I of the American Declaration”.

7 Mexico claims that Mexican citizens on death row in California, Texas, Arizona, Arkansas, Florida, Nevada, Ohio, Oklahoma, and Oregon were denied their consular rights.

8 I have been informed, however, that despite the Atkins ruling, some states continue to execute individuals who might be mentally retarded because state legislatures have a lot of leeway in determining what the cut off point is; also, the USA continues to violate numerous international protocols by executing those with severe mental illness.

9 The Innocence Project (NGO-website).

10 “Illinois Issues”, May 2003.

11 I would like to thank, in particular, Mr Eric Prokosc (London) and Mrs Sue Gunawardena-Vaughn (Washington DC) for their valuable advice.

12 The programme of the Conference is available from the Secretariat upon demand.