Doc . 9316

15 January 2002

 

Draft Protocol to the European Convention on Human Rights concerning the abolition of the death penalty in all circumstances

Report1

Committee on Legal Affairs and Human Rights

Rapporteur: Mrs Renate Wohlwend, Liechtenstein, Group of the European People's Party

Summary

The Parliamentary Assembly should welcome the decision by the Committee of Ministers to draft a Protocol to the European Convention on Human Rights concerning the abolition of the death penalty in all circumstances, thus responding to one of the Assembly’s key recommendations formulated in 1994.

However, ultimately it is in the Assembly’s interest to delete the second sentence of Article 2 of the European Convention on Human Rights, which still provides for the death penalty. The Convention should thus be updated, and brought into line with other, more modern, constitutional documents and international treaties.

This goal can be achieved without jeopardising the immediate entry into force of the Protocol (in those countries which so wish), by adding a clause which makes the Protocol a “hybrid” Protocol. In essence, such a clause would take effect when all parties to the European Convention on Human Rights have ratified the Protocol, thus changing its nature from an “additional” to an “amending” Protocol, and deleting the death penalty from the European Convention on Human Rights altogether.

In view of the importance of the Protocol, the Assembly should urge all States Parties to the Convention to sign it on the day of its opening for signature.

I.        Draft opinion

1.       The Parliamentary Assembly welcomes the decision by the Committee of Ministers to draft a Protocol to the European Convention on Human Rights concerning the abolition of the death penalty in all circumstances, thus responding to one of the key recommendations made by the Assembly in Recommendation 1246 (1994) on the abolition of capital punishment.

2.        The Assembly recalls its most recent resolutions on the subject, Resolution 1187 (1999) on Europe: a death penalty-free continent, and Resolution 1253 (2001) on the abolition of the death penalty in Council of Europe Observer states, in which it reaffirmed its beliefs that the “application of the death penalty constitutes inhuman and degrading punishment and a violation of the most fundamental right, that to life itself”, and that capital punishment “has no place in civilised, democratic societies governed by the rule of law”.

3.        The European Convention on Human Rights already boasts a Protocol on the abolition of the death penalty in peace-time: Protocol Nr. 6, which currently binds 39 of the Council of Europe’s 43 member states (the other four states respect a moratorium on executions, and three have already signed the Protocol). Protocol No. 6, also a product of an Assembly initiative, does, however, still allow for the death penalty to be inflicted in times of war or imminent threat of war.

4.       As early as 1994, the Assembly found that there was no reason why capital punishment should be inflicted in time of war or of imminent threat of war.

5.        The second sentence of Article 2 of the European Convention on Human Rights still provides for the death penalty. It has long been in the interest of the Assembly to delete this sentence, thus matching theory with reality. This interest is strengthened by the fact that more modern national constitutional documents and international treaties no longer include such provisions.

6.        In consequence the Assembly recommends to the Committee of Ministers that, in the interest of updating the European Convention on Human Rights as such on this important matter, a second paragraph be added to Article 5 of the draft Protocol (Relationship to the Convention), worded as follows:

7.        The Assembly urges all States Parties to the European Convention on Human Rights to sign this Protocol on the day of its opening for signature.

II.       Explanatory memorandum

      by Mrs Wohlwend, Rapporteur

1.        The Assembly has expressed its contempt for the death penalty for decades. This contempt first translated into an Assembly initiative, 21 years ago, to abolish the death penalty in those countries who felt prepared for this step, and to codify this decision in an additional Protocol to the European Convention on Human Rights (ECHR). The Committee of Ministers followed Recommendation 891 (1980) of the Assembly, and Protocol No 6 to the Convention on the abolition of the death penalty was opened for signature on 28 April 1983.

2.       To date, this Protocol has entered into force in 39 of the Council of Europe’s now 43 member States - the other four member states respect a moratorium on executions, and three have signed the Protocol. We have come a long way since 1980, when no-one dared to dream of a death penalty-free continent reaching from Lisbon to Kamchatka, from Oslo to Athens. The late Hans Göran Franck was perhaps one of the first members of the Assembly to think the unthinkable, and it is largely to him that we owe our current success. However, in his report on the abolition of capital punishment, Mr Franck not only made it an Assembly condition for membership in the Council of Europe to stop executions, but he also recommended the drawing up of an additional Protocol to the European Convention on Human Rights, “abolishing the death penalty both in peace- and wartime, and obliging the signatories not to re-introduce it under any circumstances”.

3.        This proposal was based on the analysis of two of the fundamental weaknesses of Protocol No 6: it did not abolish the death penalty in times of war or imminent threat of war, and it provided no formal obstacle to the reintroduction of the death penalty. I would draw attention to a third weakness: Because Protocol No 6 is an additional, not an amending Protocol, the second sentence of Article 2, paragraph 1 of the European Convention on Human Rights was not abrogated (“No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”).

4.       Even since 1994, the situation in Europe – and the world – has changed substantially as regards capital punishment. In the course of the last few years, Europe has rid itself of the death penalty, and there are now more abolitionist than retentionist states in the world. An ever increasing number of countries abolish the death penalty not only de facto, but also de jure, and accede to one (or more) of the three international instruments abolishing the death penalty. Many countries have abolished the death penalty for all crimes, both in peace- and war-time. The more modern Constitutions (e.g. of newly independent states in Eastern Europe), no longer make mention of the death penalty, or expressly outlaw capital punishment. Many Constitutional Courts have outlawed the death penalty as a form of inhuman and degrading punishment (e.g. South Africa, Ukraine, and Lithuania).

5.        Against this positive backdrop of an abolitionist movement gathering momentum in the world, came the terrorist attacks on the United States of America on 11 September 2001. In the tense world atmosphere following these attacks, and during the current fight against terrorism, it is very important to ensure that human rights are still put first, where they belong. The draft Protocol on the abolition of the death penalty in all circumstances is a good example of continued strengthening of human rights in the face of adversity.

6.       For in reality, when terrorists try to undermine the right to life, governments are under the moral obligation to strengthen the protection of the right to life. This is why the decision of the Committee of Ministers to draft a Protocol on the abolition of the death penalty in all circumstances is particularly well-timed, and should be unreservedly welcomed. This Protocol can send out a powerful signal to Europe and the world, that in times of adversity such as these, human rights must be put first, where they belong. After all, as early as 1994, the Assembly found that there was no reason why capital punishment should be inflicted in wartime, but pointed out a very weighty reason why the death penalty should never be inflicted in wartime – the lack of legal safeguards in the emotionally charged atmosphere of war, when pressure for speedy executions of death sentences are at their highest to safeguard their alleged deterrent effect, which results in a high increase in the risk of executing innocent prisoners. The same holds true in the case of imminent threat of war.

7.        I thus suppose that everyone will agree upon the necessity of a Protocol abolishing the death penalty in all circumstances. The two other concerns I raised – obligation for signatories not to re-introduce the death penalty, and deletion of the second sentence of Article 2, paragraph 1 of the ECHR – merit some discussion, however. In the draft explanatory memorandum to the draft Protocol, we find no explanation on why these concerns were not addressed.

8.        Concerning the inclusion of an obligation for signatories not to re-introduce the death penalty, one might argue that this is not necessary, since there is no withdrawal clause in the draft Protocol. It might also not be politically opportune to add such an obligation, since some countries will always insist that their parliaments should be at complete liberty to have the final say in this matter.

9.        Concerning the nature of the draft Protocol – additional or amending – an amending Protocol only enters into force when all signatories to the Convention have acceded to it, while an additional Protocol only needs a minimum number of ratifications – in this case, ten. Considering the current situation, it would not seem politically opportune to draft an amending Protocol at this point in time. However, as it has between 1983 and now, the situation might again drastically change on Council of Europe territory in the next twenty years. Are we then going to draw up another (the third!) Protocol on the same subject – the abolition of the death penalty – in order to at long last amend Article 2 of the Convention itself? In treaty law, this is a very inelegant solution, plus – obviously – a lengthy process.

10.        For this reason, I would suggest a “hybrid” Protocol, which starts out as an additional Protocol, and becomes an amending Protocol when it has entered into force in all States Parties to the Convention. So far, none of the twelve Protocols to the ECHR is a “hybrid” Protocol, but this formula has already been successfully applied to Council of Europe Conventions in the field of criminal law. This solution offers the added advantage of being relatively simple: one added paragraph would suffice, since, luckily, Article 15 of the Convention already allows for no derogation from Article 2.

11.        I would thus propose that the Assembly make the following recommendation to the Committee of Ministers:        in the interest of updating the European Convention on Human Rights as such on this important matter, a second paragraph should be added to Article 5 of the draft Protocol (Relationship to the Convention), worded as follows:

12.        All States Parties to the European Convention on Human Rights should be urged to sign this Protocol on the day of its opening for signature.

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Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Request for an opinion from the Committee of Ministers (Doc. 9291) (urgent procedure)

Draft opinion adopted by the committee on 26 November 2001 with 27 votes in favour, 1 vote against and no abstentions

Members of the committee: Mr Jansson (Chairperson), Mr Magnusson, Mr Frunda, Mrs Gülek (Vice-Chairpersons), Mr Akçali, Mr G. Aliyev, Mr Arabadjiev, Mrs van Ardenne-van der Hoeven (alternate: Mr Dees), Mr Attard Montalto, Mr Bindig, Mr Brejc, Mr Bruce, Mr Bulavinov, Mr Chaklein, Mr Clerfayt, Mr Contestabile, Mr Demetriou, Mr Dimas, Mr Enright, Mrs Err, Mr Floros, Mrs Frimansdóttir, Mr Fyodorov, Mr Guardans, Mr Gustafsson, Mrs Hajiyeva (alternate: Mr A. Huseynov), Mr Holovaty, Mr Irtemçelik, Mr Jaskiernia, Mr Jurgens, Mr Kelemen, Lord Kirkhill (alternate: Mr Lloyd), Mr Kostytsky, Mr S. Kovalev, Mr Kresák, Mr Kroupa, Mrs Krzyzanowska, Mr Lacão, Mrs Libane, Mr Lintner, Mr Lippelt, Mr Manzella, Mrs Markovic-Dimova, Mr Marty, Mr Mas Torres, Mr Masseret, Mr McNamara, Mr Michel, Mr Moeller, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mr Pellicini, Mr Penchev, Mr Piscitello (alternate: Mr Budin), Mrs Postoico, Mrs Roudy (alternate: Mr Hunault), Mr Rustamyan, Mr Simonsen, Mr Skrabalo, Mr Solé Tura, Mr Spindelegger, Mr Stankevic, Mr Stoica, Mrs Süssmuth, Mr Svoboda, Mr Symonenko, Mr Tabajdi, Mr Tallo, Mrs Tevdoradze, Mr Uriarte, Mr Vanoost, Mr Vera Jardim, Mr Volpinari, Mr Wilkinson, Mrs Wohlwend, Mr Wojcik, Mrs Wurm

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

Secretaries to the committee: Ms Coin, Ms Kleinsorge, Mr Ćupina


1 Adopted by the Committee on Legal Affairs and Human Rights on 26 November 2001, subject to a reference by the Assembly.