Posted in November 2004

INTERNATIONAL STANDARDS ABOLISHING THE DEATH PENALTY

The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) does not require the abolition of the death penalty. Since the adoption of the ECHR, however, steps have been taken to develop legally binding instruments that do abolish the death penalty.

The Council of Europe has adopted Protocol No. 6 to the ECHR, which abolishes the death penalty during peacetime. (ETS No.114, entered into force on 1 March 1985). Article 2 of Protocol No. 6 provides that a state may make provision in its law for the death penalty in respect of acts committed in times of war or of imminent threat of war.

All new member states of the Council of Europe are required to ratify Protocol No. 6 within a certain time limit (Resolution 1044 (1994) of the Parliamentary Assembly of the Council of Europe on the Abolition of Capital Punishment, 4 October 1994)

In addition, the Council of Europe has also adopted Protocol No. 13 to the ECHR, which is the first legally binding instrument that abolishes the death penalty in all circumstances, including in time of war. Protocol No. 13 entered into force on 1 July 2003 (ETS No. 187).

• Forty-four OSCE participating States have ratified Protocol No. 6. (Of the 55 OSCE participating States, 45 are member states of the Council of Europe). In the period from 30 June 2003 to 30 June 2004, three participating States ratified Protocol No. 6: Armenia, Serbia and Montenegro, and Turkey.
• Twenty-six OSCE participating States have ratified Protocol No. 13. In the period from 30 June 2003 to 30 June 2004, nine participating States ratified Protocol No. 13: Austria, Bosnia and Herzegovina, Estonia, Hungary, Lithuania, Portugal, Serbia and Montenegro, Slovenia, and the United Kingdom.   In addition, Protocol No. 13 was ratified by the Czech Republic on 2 July 2004 and by the former Yugoslav Republic of Macedonia on 13 July 2004.

INTERNATIONAL STANDARDS RESTRICTING THE USE OF THE DEATH PENALTY

As seen above, the ECHR, which is of a legally binding nature, does not require the abolition of the death penalty. Article 2 of the ECHR, which enshrines the right to life, provides that:

“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.”

The text of the ECHR itself places no explicit restrictions on the use of the death penalty, save that it can only be carried out following conviction by a court of a crime for which the death penalty is provided for by law. However, the European Court of Human Rights has interpreted both Article 2 and Article 3 of the ECHR as placing certain limitations on the use of the death penalty. Article 3 of the ECHR prohibits torture and inhuman or degrading treatment or punishment.