May 10, 2001

 In line with established EU practice, the Swedish Presidency of the European Union on May 10, 2001 made a demarche to the U.S. Administration presenting the EU positions of principle on the death penalty. For the full text, see below.

 1. The European Union (EU) is opposed to death penalty in all cases. It is the strong view of the Union and its Member States that the abolition of the death penalty would contribute to the enhancement of human dignity and the progressive development of human rights.

 2. The EU is pursuing this policy consistently in different international fora, e.g. the United Nations and the Council of Europe, and in its bilateral contacts with a large number of countries that retain the death penalty. The EU policy towards countries maintaining the death penalty aims at progressively restricting its scope, promoting respect for the strict conditions set forth in several international human rights instruments as well as expressing the EU's support to the establishing and maintaining of formal or de facto moratoria on executions. 3. As has been previously expressed by a number of EU Presidencies, The European Union is deeply

 concerned about the high number of executions in the United States. The Union calls on the U.S. government to consider further steps towards the abolition of the death penalty.

4. The EU expresses its satisfaction that no federal executions have taken place in the U.S. since 1963, and is concerned that executions may now be resumed, ending a thirty-eight year de facto moratorium.

 5. The EU calls upon the U.S. government to consider ways to ensure that the long halt on federal executions continues to be the norm, including a federal moratorium on federal executions.

6. In individual cases, the EU makes clemency demarches is cases involving: � persons below the age of eighteen at the time of committing the crime;� mentally retarded persons; � foreign nationals, whose rights under the Vienna Convention on Consular Relations have not been respected; and � EU citizens, particularly when any of the above issues is involved.

7. The EU recognizes that the U.S. has reservations to Article 6 of the International Covenant on Civil and Political Rights. Nevertheless, the EU believes that Article 6 enshrines the minimum rules for the protection of the right of life and the generally accepted standards in this area. It notes the UN Human Rights Committee view that the U.S. reservation is incompatible with the object and purpose of ICCPR and should be withdrawn.

(source: European Union--Embassy of Sweden, in Washington)

EU POLICY ON THE DEATH PENALTY

The European Union (EU) is opposed to the death penalty in all cases and has consistently espoused its universal abolition, working towards this goal. In countries which maintain the death penalty, the EU aims at the progressive restriction of its scope and respect for the strict conditions, set forth in several international human rights instruments, under which the capital punishment may be used, as well as at the establishment of a moratorium on executions so as to completely eliminate the death penalty. The EU is deeply concerned about the increasing number of executions in the United States of America (USA), all the more since the great majority of executions since reinstatement of the death penalty in 1976 have been carried out in the 1990s. Furthermore, it is permitted to sentence to death and execute young offenders aged under 18 at the time of the commission of the crime, in clear infringement of internationally-recognised human rights norms. At the dawn of a new millennium the EU wishes to share with the USA the principles, experiences, policies and alternative solutions guiding the European abolitionist movement, all the EU Member States having abolished the death penalty. By doing so, the EU hopes that the USA, which has risen upon the principles of freedom, democracy, the rule of law and respect for human rights, considers joining the abolitionist vanguard, including as a 1st step towards abolition establishing a moratorium in the use of the death penalty, and by this way becoming itself a paradigm for retentionist countries.

 1. Europe: On the Road to AbolitionIn

Western Europe the death penalty issue aroused the attention of some circles within society at an early stage. Included among the instruments of both criminal law and criminal policy through ages, capital punishment soon raised a debate on humanitarian values. This evolution in attitudes to the death penalty began particularly in the context of the establishment of the democratic State in the 18th century and since then, step by step, it has gained the support of the peoples of the States nowadays assembled in the European Union. In fact, the questioning of the legitimacy of the death penalty dawned in the context of the Enlightenment, at the end of the 18th century. At that time deprivation of liberty was the preferred means of criminal punishment, in parallel with the rise of classic criminal law. Although early attempts to repeal the death penalty were not a total success, several European countries had by then accepted the limitation of the death penalty to capital crimes and reformed their law accordingly. This trend towards restriction of the scope of capital punishment would continue throughout the next two centuries, although not without various backward steps due to particular political circumstances. Nevertheless some of those countries went even further and definitively abolished the death penalty in their laws for ordinary crimes. Portugal led the way in 1867, immediately followed by the Netherlands. Sweden and Denmark joined this abolitionist movement after the First World War. After the Second World War, Italy, Finland and Austria did likewise. The mid-century was also the time for Germany to outlaw capital punishment, encompassing abolition for all crimes. In the 1960s and 1970s, the United Kingdom and Spain also became legally abolitionist for civil crimes. In the meantime the trend towards abolition for all crimes, thus including crimes under military law or committed in exceptional circumstances such as during wartime, was also affirmed. Since the end of the 1960s, all EU Member States have absolutely abandoned the death penalty in law. From this, it is clear that for the majority of Member States the total abolition of capital punishment was achieved in two stages of which the second was, in general, a lengthy process. Furthermore, it has to be stressed that, although countries such as the United Kingdom, Spain, Luxembourg, France, Ireland, Greece and Belgium maintained the death penalty in their laws into the second half of this century, executions took place quite rarely or else this form of punishment simply remained unused. In fact, a long period of time generally passed between the carrying out of the last execution and abolition of the death penalty, which leads to the conclusion that when European countries formally abandoned capital punishment they were already abolitionist de facto or even by tradition, capital punishment having clearly fallen into disuse in judicial practice. On the other hand, while in some EU Member States abolitionist measures have met the deep sentiment of the population and thus corresponded to the accomplishment of a national tradition, in others the political decision towards abolition was not taken with the support of the majority of public opinion. Nevertheless in countries where this was the case, the decision did not result in any form of negative reaction, usually leading to minimal debate on the issue. Therefore, mention should be made of the fact that abolition itself contributed favourably to better-informed public opinion, which helped to shape different feelings among community members.

2. The Common Basis for Abolition: Values, Principles and Criminal Policy

The death penalty poses a set of distinct questions of a philosophical, religious, political and criminological nature. Although Member States' experiences in abolition varied in time, they shared common ground - that of the inhumane, unnecessary and irreversible character of capital punishment, no matter how cruel the crime committed by the offender. Besides, this justification now seems to be shared by the international community as a whole, insofar as both the Rome Statute of the International Criminal Court and the United Nations Security Council Resolutions establishing the International Criminal Tribunals for the former Yugoslavia and for Rwanda do not provide the death penalty among the range of sanctions, even when the most serious crimes, including genocide, crimes against humanity and war crimes are to be tried. Humanistic values, ethical points of view and human rights reasons weighed in favour of the abolition of the death penalty. Effectively, for the European Governments the death penalty as a means of State punishment rapidly revealed itself as a denial of human dignity, which is a fundamental basis of the common heritage of the European Union as a union of shared values and principles. At the same time, there is insufficient justification on either criminal or criminological grounds for maintaining such a punishment. First of all, it is scientifically undemonstrated that the death penalty and its application deter criminality any more effectively than other forms of punishment. Indeed, crime rate and the death penalty are independent realities, capital punishment and its execution failing to have a deterrent effect and thus to produce less violent societies. Besides, maintaining capital punishment would not fit the philosophy of rehabilitation pursued in the criminal justice systems of all EU Member States and according to which one of the penological aims of penalties is that of rehabilitating or resocialising the offender. Furthermore, emphasis is also placed upon the penological goal of prevention, understood as a process ante delictum (before crime) and post delictum (post-crime), implying the rejection of any form of brutality, either physical or psychological, with a view to promoting respect for human rights and preventing the development of an even more crime-ridden society. Last but not the least, capital punishment should not be seen as an appropriate way of compensating the suffering of crime victims' families, as this view turns the justice system into a mere tool of illegitimate private vengeance. This does not mean that European criminal systems are insensitive to victims' rights and interests. Quite the contrary. Legislation safeguarding those rights, as well as victims' assistance agencies and programmes are provided. Besides, there are appropriate alternatives to the death penalty which respond to their needs and ensure adequate assistance to them. Both offenders and victims' families stand in need of rehabilitation. As far as the later are concerned, it is essential that the emotion caused by the loss they suffered is surmounted and this requires the availability of financial and psychological support. In the realm of judicial practice, the irreversible nature of capital punishment has also to be taken into account. Even highly advanced legal systems, which rest upon the principle of the rule of law, including the principle of due process, are not immune to miscarriages of justice. That irreversibility removes any possibility of correcting such miscarriages of justice, allowing for the execution of innocent people. Judicial error, different interpretations of the law, conviction based on unclear and non-convincing evidence, as well as lack of adequate legal assistance at all stages of the proceedings, in particular where the offender is indigent, are just some of the circumstances which may result in the innocent being executed. As a result, criminal policy programmes were intentionally humanised in order to pursue the view under which the State's actions should not have human beings as victims, but also that of the promotion of the human person as one of the major purposes of criminology. Maintaining the death penalty would, instead, bring to light undesirable expiatory features of criminal law. Accordingly, major reform initiatives were carried out, restructuring the criminal sanctions so as to make them more conducive mainly to the rationale of social rehabilitation and reintegration of the offender in the community, simultaneously taking into account the need to ensure the protection of society and to prevent crime, rather than punish it.

3. Envisaging Alternative Sanctions

Opting for a more humane, but also more effective, criminal justice system paved the way for considering appropriate alternative criminal sanctions to the death penalty. In fact European lawmakers assumed that crime could be punishable by means of non-lethal penalties, such as long-term or life imprisonment. In practice, even when the death penalty was still contemplated in law, and even mandatory, either the judge would decide upon an alternative penalty by reason of mitigating circumstances or the sentence would be systematically the object of a pardon and thus commuted. Imprisonment for life remains the usual alternative for very serious crimes. In any case, although nearly all Member States provide for this type of punishment in their respective penal codes either as a possibility or mandatorily, it is understood rather as a principle than as a common practice. In some countries life imprisonment can indeed be replaced by temporary incarceration once there are mitigating circumstances. Furthermore, in practically all Member States parole can be granted to those sentenced to life after having served a certain term in prison and depending on other factors, such as good behaviour, signs of readaptation or illness. Commutation of the penalty by way of pardon is also provided for in almost all the sanctions systems concerned. Moreover, in some of these countries imprisonment for life simply can not be applied to juveniles or to the mentally ill.As to long-term imprisonment, the present criminal policy in the EU Member States clearly shows a decreasing trust in the resocialising effect of long prison sentences and is moving towards keeping imprisonment to an absolute minimum. It is well established that long-term imprisonment, and above all imprisonment for life, fails to achieve its criminal policy's goals, unless relevant measures are adopted in order to enable the return of the prisoner to social life at the appropriate moment. In this context, the possibility of parole is of paramount importance. In fact, a crime prevention policy which admits maintaining imprisoned for life a convicted person who has served in prison a term corresponding to the gravity of the committed crime and is no longer a danger to society, would fail to meet either recognised minimum standards for the treatment of prisoners or the goal of social rehabilitation which is achieved in view of the willingness and ability of the offender to a lead a law-abiding and self-supporting life. Moreover, it must be underlined that the United Nations (UN) Convention on the Rights of the Child expressly deals with the issue of imprisonment for life imposed on minors, stating that life imprisonment without the possibility of release shall not be imposed for offences committed by persons below 18 years of age.

 4. The International Context

The de jure abolitionist trend endorsed by European legislators, clearly evident in the second half of this century, was also favoured by the international environment. In fact, abolition of the death penalty soon became an issue of international concern, contributing to the enhancement of human dignity and the gradual development of human rights. In 1971, the United Nations General Assembly in Resolution 2857 (XXVI) affirmed the desirability of abolishing the death penalty in all countries. As for international abolitionist treaties, the Council of Europe took the first steps in 1983 by adopting Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) concerning the Abolition of the Death Penalty. In the framework of the UN a Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) aiming at the abolition of the death penalty was adopted in 1989. More recently, the Inter-American system for the protection of human rights followed the abolitionist vanguard and the Organisation of American States - of which the United States is a member - adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty in 1990. Furthermore, strict conditions under which the death penalty may be used are laid down in international human rights instruments, such as the ICCPR or the UN Economic and Social Council (ECOSOC) Safeguards Guaranteeing Protection of those Facing the Death Penalty. The EU seeks to ensure that in countries where the death penalty has not been abolished executions are carried out in accordance with those generally accepted safeguard standards. It particularly pays attention to: imposition of capital punishment beyond the most serious crimes; retroactive enforcement of the death penalty; imposition of capital punishment on pregnant women or new mothers and on persons suffering from any form of mental disorder; disrespect for procedural safeguards, including the right to a fair trial and the right to petition for clemency; or inhumane enforcement of the death penalty. Executions under these circumstances are contrary to internationally recognised human rights norms and neglect the dignity and worth of the human person.

5. Juvenile Justice

The EU is equally concerned about the imposition of the death penalty on persons below 18 years of age.All the EU Member States reject the idea of incorrigibility of juveniles. These States hold the view that the problem of juvenile delinquency should be addressed bearing in mind that young offenders are in the process of full development, facing several difficulties of adaptation. In addition, poor backgrounds, lack of success at school and dependence on drugs are just some of the social problems affecting them and fostering their criminal behaviour. As a result, they are less mature, and thus less culpable, and should not be treated as adults, deserving a more lenient criminal sanctions system. This implies, among other things, rejection of death penalty for juveniles. The European approach to juvenile justice is therefore deeply consistent with internationally-recognised juvenile justice standards, as enshrined in the following international human rights instruments: the UN International Covenant on Civil and Political Rights, the ECOSOC Safeguards Guaranteeing Protection of those Facing the Death Penalty, the UN Convention on the Rights of the Child and the American Convention on Human Rights. In fact, the international norms in question expressly prohibit sentencing to death persons below 18 years of age at the time of the commission of the crime. A similar prohibition is set out in the 4th Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War and Additional Protocols of 1977 to the Geneva Conventions.

The EU and its Member States base their action on the inherent dignity of all human beings and on the inviolability of the human person. Offenders are human beings who committed a crime but who also enjoy an inherent and inalienable dignity, the very same dignity claimed by rationalist philosophy, all relevant religions and by law, the death penalty being a denial of human dignity.

 The criminal justice system of a country, and in particular its sanctions system, may reflect traditions and specific historical aspects of a society. However, the death penalty issue is, above political, legal or criminal considerations, a question of humanity. Humanisation of the problem of capital punishment should be a decisive aspect of a people's life.Long ago European countries, either in practice or in law, made a choice for humanity, abolishing the death penalty and thus fostering respect for human dignity.

And this is an ultimate principle that the EU wishes to share with all countries, as it shares other common values and principles such as freedom, democracy, and the rule of law and safeguard of human rights. If it succeeds in reaching this goal, both the EU and those countries will have furthered the cause of humanity, as Beccaria foretold. The EU thus invites the USA to equally embrace this cause.

(source: European Union)