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Recommendation 2123 (2018)
Strengthening international regulations against trade in goods used for torture and the death penalty
1. The absolute prohibition of torture
and inhuman or degrading treatment or punishment in all circumstances
is a peremptory norm of international law, incorporated into numerous
treaties including Article 3 of the European Convention on Human
Rights (ETS No. 5, hereinafter the Convention), Article 7 of the
International Covenant on Civil and Political Rights and the United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. This prohibition is so strict as to require
States to take into account consequences of their actions that may
occur in other countries.
2. The death penalty is now unlawful in all Council of Europe
member States. Protocol No. 6 to the European Convention on Human
Right (ETS No. 114), which abolishes the death penalty in peacetime,
has been ratified by all member States except the Russian Federation,
whose Constitutional Court has nevertheless instituted a moratorium;
and Protocol No. 13 to the European Convention on Human Rights (ETS No. 187),
which abolishes the death penalty in all circumstances, has been
ratified by all member States except Armenia, Azerbaijan and the
Russian Federation. Recognising and building on this progress, in
2010, the European Court of Human Rights ruled that the death penalty
amounted to inhuman or degrading treatment and thus fell within
the prohibition set out in Article 3 of the Convention.
3. The Parliamentary Assembly considers that on the basis of
these existing legal obligations, Council of Europe member States
are required to take effective measures to prevent activity within
their jurisdictions that might contribute to or facilitate capital
punishment, torture and inhuman or degrading treatment or punishment in
other countries, including by effectively regulating the trade in
goods that may be used for such purposes.
4. The trade in goods used for the death penalty, torture or
inhuman or degrading treatment or punishment can contribute to the
incidence of capital punishment and torture or serious ill-treatment
by providing those responsible with the means to act. The European
Union’s prohibition of sales of pharmaceutical products that could
be used for capital punishment to third countries where it is known
that the products will be used for that purpose, for example, has
seriously hampered the ability of several States of the United States
of America to execute the death penalty.
5. The Assembly cannot accept that companies or other individuals
or entities in Council of Europe member States are involved in the
trade in goods used for the death penalty, torture or inhuman or
degrading treatment or punishment. It is concerned that the trade
in this type of goods continues to take place in some member States.
6. The Assembly takes note of the Council of the European Union’s
Regulation (EC) No. 1236/2005 concerning trade in certain goods
which could be used for capital punishment, torture or other cruel,
inhuman or degrading treatment or punishment, as amended by Regulation
(EU) No. 2016/2134. This regulatory regime is the most advanced
and effective in the world. It represents an approach that can and
should be applied by all Council of Europe member States. Since
information sharing and technical co-operation, which are fundamental
parts of any international regulatory mechanism, depend on normative
and procedural compatibility, it is important to harmonise the regulatory
systems of all the Council of Europe member States.
7. The Assembly welcomes and fully supports the Global Alliance
to end trade in goods used for capital punishment and torture (the
Global Alliance), launched by the European Union, Argentina and
Mongolia at the United Nations General Assembly on 18 September
2017, and its Political Declaration adopted by 58 countries, including
41 Council of Europe member States, and the European Union. The
Declaration recalls the essential principles of international law,
condemns the trade in goods used for the death penalty, torture
or inhuman or degrading treatment of punishment, commits States
to taking regulatory action at national level and to co-operating
at international level, and establishes a basic framework to facilitate
this.
8. For the purposes of this Recommendation, the expression “goods
used for the death penalty, torture or inhuman or degrading treatment
or punishment” should be considered to cover items falling within
the following categories, as defined in Annexes II, III and III.a of Regulation No. 1236/2005, as
revised in 2014 and 2016:
8.1. goods
which have no practical use other than for the purposes of the death
penalty, torture or inhuman or degrading treatment or punishment,
the trade in which should be prohibited, including:
8.1.1. goods
specifically designed for the execution of human beings, and certain
of their components;
8.1.2. goods designed to restrain human beings but which are
not suitable for such use by law-enforcement authorities;
8.1.3. portable devices which are not suitable for use by law-enforcement
authorities for the purpose of riot control or self-protection;
8.1.4. certain types of whips;
8.2. goods designed for legitimate use by police or security
forces but which could be abused for the purpose of torture or inhuman
or degrading treatment or punishment, the trade in which should
require authorisation, including:
8.2.1. certain goods designed
for restraining human beings;
8.2.2. certain weapons designed for the purpose of riot control
or self-protection;
8.2.3. certain weapons and equipment disseminating incapacitating
or irritating chemical substances for the purpose of riot control
or self-protection and certain related chemical substances;
8.2.4. products which could be used for the execution of human
beings by means of lethal injection.
9. The term “trade” in goods used for the death penalty, torture
or inhuman or degrading treatment or punishment should be considered
to cover the following activities, as defined in Regulation No. 1236/2005,
as amended in 2016:
9.1. the import
and export of regulated goods;
9.2. the transit of regulated goods through national territory;
9.3. the brokering of transfers of regulated goods between
third countries;
9.4. the provision of technical assistance in relation to regulated
goods;
9.5. the training in the use of regulated goods;
9.6. the promotion of regulated goods at trade fairs;
9.7. the buying from or selling to parties in third countries
of any form of advertising for regulated goods.
10. The Parliamentary Assembly invites the Committee of Ministers
to call on the member States of the Council of Europe, insofar as
it is not already done, to:
10.1. introduce
legislation regulating the trade in goods used for the death penalty,
torture or inhuman or degrading treatment or punishment, prohibiting
trade in the goods defined in paragraph 8.1 and requiring authorisation
for trade in the goods defined in paragraph 8.2, such authorisation
to be withheld when there are reasonable grounds for believing that
these goods might be used for capital punishment or torture or inhuman
or degrading treatment or punishment in a third country;
10.2. take full account of information from a range of sources,
including the reports of international and regional human rights
mechanisms and independent civil society bodies, on the situation
regarding the death penalty, torture and inhuman or degrading treatment
or punishment in third countries when examining requests for authorisation
of trade in relevant goods;
10.3. publish annual reports on their regulatory activities
in this area, including details of decisions given on requests for
authorisation of trade in specific goods and the reasons for those
decisions;
10.4. on the basis of such annual reports and through direct
contacts, take account of other member States’ decisions on requests
for authorisation of trade in specific goods, especially refusals
to grant such authorisation;
10.5. join the Global Alliance, make full use of and contribute
to the global network of Focal Points for sharing information, including
on decisions on requests for authorisation of trade in specific
goods, and best practice, and, where necessary, seek the technical
assistance of other members of the Global Alliance for the design
and implementation of relevant legislation;
10.6. ratify Protocols Nos. 6 and 13 to the European Convention
on Human Rights and request that the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
make public any unpublished reports concerning them.
11. The Parliamentary Assembly invites the Committee of Ministers
to call on the European Union and its institutions, as appropriate,
to:
11.1. encourage its member States
that have not yet done so to publish the annual reports required
of them under Regulation No. 1236/2005, ensuring that the European
Commission’s own future annual report is a comprehensive review
of the situation across the European Union;
11.2. consult independent civil society bodies with particular
expertise in the field when preparing the European Commission’s
review of the implementation of Regulation No. 1236/2005, including
with respect to possible amendment of the regulation and revision
of its Annexes II and III;
11.3. continue promoting the Global Alliance throughout the
world, and co-operate with the Council of Europe to this end as
regards the latter’s member States.
12. The Council of Europe, which is a global pioneer in the abolition
of the death penalty and enforcement of the prohibition on torture,
should, along with its member States, continue to play a leading
role in this field. The Parliamentary Assembly therefore calls on
the Committee of Ministers to:
12.1. encourage
those Council of Europe member States that have not yet done so
to join the Global Alliance;
12.2. provide technical support in relation to the implementation
of paragraph 10 of this Recommendation through co-operation activities
with those member States that request it;
12.3. consider adopting a recommendation to member States setting
out technical guidance on how to establish and implement an effective
regulatory regime, whose effect would be to extend the scope of the
approach taken by Regulation No. 1236/2005 through harmonised national
systems in non-European Union member States, and which should include
a mechanism to monitor progress made in implementing the recommendation;
12.4. co-operate with the European Union to these ends.