EU Guidelines on the Death Penalty

EU Guidelines on the Death Penalty: revised and updated version

I. INTRODUCTION

(i) The United Nations, inter alia in the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC) and in the ECOSOC Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, has established strict conditions only under which the death penalty may be used. The Second Optional Protocol to the ICCPR provides for states to commit themselves to permanent abolition of the death penalty. The European Union has moved beyond this and espouses abolition for itself and others.

ii) During the 62nd session of the General Assembly, the Plenary of the General Assembly adopted the Third Committee resolution on a Moratorium on the use of the death penalty (62/149). The European Union actively participated in the cross-regional alliance which successfully led and guided this initiative through the General Assembly and all EU partners co-sponsored this initiative. In this resolution, the General Assembly calls on all States that still maintain the death penalty to:

Respect international standards that provide safeguards guaranteeing the protection of the right of those facing the death penalty, in particular minimum standards;

Progressively restrict the use of death penalty and reduce the number of offences for which it may be imposed;

Establish a moratorium on executions with a view to completely abolishing the death penalty.

This General Assembly resolution also calls upon States which have abolished the death penalty not to reintroduce it.

The GA resolution is in line with the resolutions on the death penalty as adopted by the Commission on Human Rights over the past decade in all consecutive sessions, the last being resolution 2005/59.

iii) At the October 1997 Council of Europe Summit, Heads of Government, including all EU member states, called for universal abolition of the death penalty. Moreover, new member states of the Council of Europe have committed themselves to moratoria and to ratify the 6th Protocol of the European Convention on Human Rights (ECHR) committing them to permanent abolition. The 13th Protocol of the ECHR, which has been signed by all EU member states and entered into force on 1 July 2003, commits the member states concerned to permanent abolition of the death penalty in all circumstances.

The Committee of Ministers of the Council of Europe decided in September 2007 to declare a “European Day against the Death Penalty” which is to be marked each year on 10 October. In December 2007, this European Day was also declared by the European Union.

iv) Article 2 of the EU Charter of Fundamental Rights provides that no one shall be condemned to the death penalty, or executed. All European Union member states are fully committed to these provisions and implement them in practice.

v) In the Organization for Security and Cooperation in Europe (OSCE), participating States are committed under the Copenhagen document to exchange information on the abolition of the death penalty and to make this available to the public. The EU fulfils this by regular statements within the OSCE's Human Dimension framework.

vi) The Rome Statute of the International Criminal Court as well as the statutes of the International Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda, all of which the EU supported, contain no provision for the death penalty, notwithstanding the fact that they were set up to deal with mass violations of humanitarian law including genocide.

vii) The EU will keep these Guidelines under regular review and would envisage conducting such a review every three years.

II. OPERATIONAL PAPER

The EU considers that abolition of the death penalty contributes to the enhancement of human dignity and the progressive development of human rights.

The objectives of the European Union are:

To work towards universal abolition of the death penalty as a strongly held policy view agreed by all EU member states; if necessary with the immediate establishment of a moratorium on the use of the death penalty with a view to abolition.

Where the death penalty still exists, to call for its use to be progressively restricted and to insist that it be carried out according to minimum standards as set out in the attached paper, while seeking accurate information about the exact number of persons sentenced to death, awaiting execution and executed.

These objectives are an integral part of the EU’s human rights policy.

The European Union will continue to intensify its initiatives, including declarations or demarches on the death penalty, in international fora and towards other countries, in the light of the attached Minimum Standards Paper.

The European Union will consider, case by case, and on the basis of relevant criteria, whether to make demarches to other countries over the use of the death penalty.

The main elements of the EU approach will be as follows:

GENERAL DEMARCHES

Where relevant, the European Union will raise the issue of the death penalty in its dialogues and consultations with third countries. Elements in these contacts will include:

The EU's call for universal abolition of the death penalty, or at least for a moratorium.

Where its use is maintained, the EU will emphasise that states should only use the death penalty in line with the provisions contained in the minimum standards as set out in the attached paper, based on the provisions contained in international human rights law and other international standards, and they should maintain maximum transparency, including through publishing information about the death penalty and its use.

The precise nature of such approaches will take into consideration, inter alia:

Whether the country has a properly functioning and open judicial system;

Whether the country has made international undertakings not to use the death penalty, e.g., in connection with regional organisations and instruments;

Whether the legal system of the country, and its use of the death penalty, is closed to public and international scrutiny, and whether there are indications that the death penalty is widely used in contravention of minimum standards.

Particular consideration will be given to making EU demarches on the use of the death penalty at times at which a country's policy on the death penalty is in flux, e.g., where an official or de facto moratorium on the death penalty is to be ended, or where the death penalty is to be reintroduced through legislation.

Particular consideration will be given to reports and findings by relevant international human rights mechanisms.

A demarche or public statement may be made where countries take steps towards abolition of the death penalty.

INDIVIDUAL CASES

In addition, where the European Union becomes aware of individual death penalty cases which violate minimum standards, the EU will consider making specific demarches. Actions will be considered on a case by case basis.

Speed will often be essential in these cases. Member states proposing such demarches should therefore provide as much background as possible drawing on all available sources. This should include brief details of the alleged crime, criminal proceedings, the precise nature of the violation of the minimum standards, the status of any appeal and, if known, the expected date of execution.

Where there is sufficient time consideration should be given to seeking, from Heads of Mission, detailed information and advice on the case prior to demarches being made.

HUMAN RIGHTS REPORTING

EU Heads of Mission should include an analysis of the application and use of the death penalty and the effect of EU action in this respect in their human rights reports, including in the human rights fact sheets.

POSSIBLE RESULTS OF EU INTERVENTIONS: OTHER INITIATIVES

The EU's objective, where possible, is to persuade third countries to abolish the death penalty. To this end, the EU will encourage countries to consider acceding to the Second Optional Protocol to the ICCPR and comparable regional instruments. Additionally, where this is not possible, the EU will nevertheless maintain abolition as an objective, and will:

Encourage states to ratify and comply with International human rights instruments, especially those relating to the use of the death penalty, including the ICCPR;

Encourage and offer bilateral and multilateral cooperation, inter alia in collaboration with civil society, including in the legal field with the aim of establishing a fair and impartial judicial process for criminal cases.

ACTION IN MULTILATERAL FORA

The EU will raise the issue of the death penalty in relevant multilateral fora and seize all appropriate opportunities to put before them initiatives aimed at introducing a moratorium on the use of the death penalty and, in due course, abolition. Whenever appropriate, the EU will seek to include references to the establishment of a moratorium on executions and the abolition of the death penalty in documents produced under the proceedings of these multilateral fora.

The EU will encourage relevant international organisations to take appropriate steps to encourage states to ratify and comply with international treaties and standards relating to the death penalty.

III. MINIMUM STANDARDS PAPER

Where states insist on maintaining the death penalty, the EU considers it important that the following minimum standards should be met:

i) Capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences. The death penalty should not be imposed for non-violent acts such as financial crimes, religious practice or expression of conscience and sexual relations between consenting adults nor as a mandatory sentence.

ii) Capital punishment may be imposed only for a crime for which the death penalty was prescribed at the time of its commission, it being understood that if, subsequent to the commission of the crime, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

iii) Capital punishment may not be imposed on:

Persons below 18 years of age at the time of the commission of their crime;

Pregnant women or new mothers;

Persons who have become insane.

iv) Capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for alternative explanation of the facts.

v) Capital punishment must only be carried out pursuant to a final judgement rendered by an independent and impartial competent court after legal proceedings, including those before special tribunals or jurisdictions, which gives all possible safeguards to ensure a fair trial, at least equal to those contained in Article 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings, and where appropriate, the right to contact a consular representative.

vi) Anyone sentenced to death shall have an effective right to appeal to a court of higher jurisdiction, and steps should be taken to ensure that such appeals become mandatory.

vii) Where applicable, anyone sentenced to death shall have the right to submit an Individual complaint under International procedures; the death sentence will not be carried out while the complaint remains under consideration under those procedures; the death penalty will not be carried out as long as any related legal or formal procedure, at the international or at the national level, is pending.

viii) Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases of capital punishment.

ix) Capital punishment may not be carried out in contravention of a state's international commitments.

x) The length of time spent after having been sentenced to death may also be a factor.

xi) Where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering. It may not be carried out in public or in any other degrading manner.

xii) The death penalty should not be imposed as an act of political revenge in contravention of the minimum standards, e.g., against coup plotters.