Why the Charter won’t re-introduce the Death Penalty

Believe it or not there appears to be quite a lot of people who believe it will.

For this one we have to go back to the beginning.

When the European Convention on Human Rights was being written in 1949 many, if not most, European countries still had the death penalty. Rather than prohibiting it, Article 2 provided safeguards for when it was carried out. Here’s Article 2, quoted in full:

“1. Everyone’s right to life shall be protected by law. 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.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling a riot or insurrection.”

In McCann v. United Kingdom (commonly referred to as the Gibraltar case) the European Court of Human Rights described the second paragraph of Article 2 as follows:

“[P]aragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to ‘use force’ which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than ‘absolutely necessary’ for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c).”

Over the years many countries have abolished the death penalty. Frequently as in Ireland’s case by abolishing it in practice and then by legally prohibiting it. In 1983 the Council of Europe approved a protocol to the Convention abolishing the death penalty in peacetime. In would appear that not enough countries would agree, at the time, to abolishing the death penalty in all circumstances. Protocol 6 has now been ratified by every Council of Europe member state except Russia. It’s operative provisions read as follows:

“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 – 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.”

By 2000 during the convention which drafted the Charter of Fundamental Rights, all of the then fifteen EU member states had ratified the protocol. The Charter is (sometimes) more economical with words that the Convention on Human Rights and simply says that:

“Article 2
Right to life
1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.”

However the Charter also says (Article 52(3)) that its provisions should be interpreted in line with the Convention and so an explanatory memorandum, which accompanies the Charter, refers to the,

“‘negative’ definitions appearing in the [Article 2 of the Convention which] must be regarded as also forming part of the Charter”,

and then goes on to quote the second paragraph of Article 2 of the Convention and Article 2 of the Protocol 6. (I’ve already quoted both.) In doing this, the writers of the memorandum merely mirrored the pre-existing international obligations all EU member states had at that time.

Some two years after the Charter was approved by EU leaders in 2000, the Council of Europe approved Protocol 13 of the Convention which abolished the death penalty in all circumstances. As yet not all EU member states have ratified this protocol, so it is understandable that the memorandum was not changed to quote this new protocol instead of Protocol 6.

The death penalty myth confuses the Convention’s provisions on the death penalty with those on the use of lethal force. The Convention envisaged the quelling of riots and insurrections possible justifications for the use of lethal force, not executions. Protocol 6 of the Convention provided for the abolition the death penalty in peacetime, not its re-introduction during wartime. Rather than re-introducing the death penalty for “war, riots [and] upheaval”, the Charter reflects every EU member states’ current obligations under the European Convention on Human Rights.