Draft
Protocol to the European Convention on Human Rights concerning the
abolition of the death penalty in all circumstances
Doc.
9316
15
January 2002
Report[1]
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:
�When
this Protocol has come into force in all States Parties to the Convention,
the second sentence of Article 2 paragraph 1 of the Convention shall be
replaced with the text of Article 1 of this Protocol, and in the first
sentence of Article 57 of the Convention, after the words �provision of
the Convention� the words �except to Article 2, paragraph 1� shall be
added.�
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 G�ran 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:
�When
this Protocol has come into force in all States Parties to the Convention,
the second sentence of Article 2 paragraph 1 of the Convention shall be
replaced with the text of Article 1 of this Protocol, and in the first
sentence of Article 57 of the Convention, after the words �provision of
the Convention� the words �except to Article 2, paragraph 1� shall be
added.�
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.
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 G�lek
(Vice-Chairpersons), Mr Ak�ali, 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
Frimansd�ttir, Mr Fyodorov, Mr Guardans, Mr Gustafsson, Mrs Hajiyeva
(alternate: Mr A. Huseynov), Mr Holovaty, Mr Irtem�elik, Mr Jaskiernia, Mr
Jurgens, Mr Kelemen, Lord Kirkhill (alternate: Mr Lloyd), Mr Kostytsky, Mr
S. Kovalev, Mr Kres�k, Mr Kroupa, Mrs Krzyzanowska, Mr Lac�o, 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 Sol� Tura, Mr
Spindelegger, Mr Stankevic, Mr Stoica, Mrs S�ssmuth, 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.
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