European Convention on Human Rights – Draft Protocol N° 13 on abolition of the death penalty in all circumstances
Doc. 9291
14 December 2001
Request for an opinion from the Committee of Ministers
Letter from the Chairman of the Ministers' Deputies to the President of the Parliamentary Assembly, dated 12 December 2001.
Dear President,
I have the honour to inform you that, at their 773rd meeting on 21 November 2001, the Deputies decided to transmit to the Parliamentary Assembly the text of Draft Protocol No.13 to the European Convention on Human Rights for opinion, and agreed to examine the question of the adoption of this Protocol and its opening for signature after transmission of the Parliamentary Assembly’s Opinion, if possible at one of its meetings in February 2002.
I accordingly address to you the Committee of Ministers’ formal request to the Parliamentary Assembly to give its opinion on the text of the draft Protocol, a copy of which is enclosed together with the text of the draft explanatory report.
Please accept my thanks in anticipation of the Assembly’s Opinion.
Yours sincerely,
Signed:
Rokas BERNOTAS
Draft Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances
(Strasbourg, ...................)
The member states of the Council of Europe signatory hereto,
Convinced thateveryone’s right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings;
Wishing to strengthen the protection of the right to life guaranteed bythe Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”);
Noting that Protocol No. 6 to the Convention, concerning the Abolition of the Death Penalty, signed at Strasbourg on 28 April 1983, does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war;
Being resolved to take the final step in order to abolish the death penalty in all circumstances,
Have agreed 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
Prohibition of derogations
No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.
Article 3
Prohibition of reservations
No reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol.
Article 4
Territorial application
1. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance or approval, specify the territory or territories to which this Protocol shall apply.
2. Any State may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Protocol to any other territory specified in the declaration. In respect of such territory the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt by the Secretary General of such declaration.
3. Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn or modified by a notification addressed to the Secretary General. The withdrawal or modification shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General.
Article 5
Relationship to the Convention
As between the states Parties the provisions of Articles 1 to 4 of this Protocol shall be regarded as additional articles to the Convention, and all the provisions of the Convention shall apply accordingly.
Article 6
Signature and ratification
This Protocol shall be open for signature by member states of the Council of Europe which have signed the Convention. It is subject to ratification, acceptance or approval. A member State of the Council of Europe may not ratify, accept or approve this Protocol without previously or simultaneously ratifying the Convention. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
Article 7
Entry into force
1. This Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date on which ten member states of the Council of Europe have expressed their consent to be bound by the Protocol in accordance with the provisions of Article 6.
2. In respect of any member State which subsequently expresses its consent to be bound by it, the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of ratification, acceptance or approval.
Article 8
Depositary functions
The Secretary General of the Council of Europe shall notify all the member states of the Council of Europe of:
a. any signature;
b. the deposit of any instrument of ratification, acceptance or approval;
c. any date of entry into force of this Protocol in accordance with Articles 4 and 7;
d. any other act, notification or communication relating to this Protocol.
In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.
Done at … , this … , in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe.
Appendix
Explanatory Report
Introduction
1. The right to life, “an inalienable attribute of human beings” and “supreme value in the international hierarchy of human rights”[1] is unanimously guaranteed in legally binding standards at universal and regional levels.
2. When these international standards guaranteeing the right to life were drawn up, exceptions were made for the execution of the death penalty when imposed by a court of law following a conviction of a crime for which this penalty was provided for by law (cf., for example, Article 2, paragraph 1, of the European Convention on Human Rights (hereinafter: “the Convention”)).
3. However, as illustrated below, there has since been an evolution in domestic and international law towards abolition of the death penalty, both in general and, more specifically, for acts committed in time of war.
4. At the European level, a landmark stage in this general process was the adoption of Protocol No. 6 to the Convention in 1982. This Protocol, which to date has been ratified by almost all States Parties to the Convention, was the first legally binding instrument in Europe - and in the world – which provided for the abolition of the death penalty in time of peace, neither derogations in emergency situations nor reservations being permitted. Nonetheless, under Article 2 of the said Protocol, “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”. However, according to the same Article, this possibility was restricted to the application of the death penalty in instances laid down in the law and in accordance with its provisions.
5. Subsequently, the Parliamentary Assembly established a practice whereby it required from states wishing to become a member of the Council of Europe that they committed themselves to apply an immediate moratorium on executions, to delete the death penalty from their national legislation, and to sign and ratify Protocol No. 6. The Parliamentary Assembly also put pressure on countries which failed or risked failing to meet the commitments they had undertaken upon accession to the Council of Europe. More generally, the Assembly took the step in 1994 of inviting all member states who had not yet done so, to sign and ratify Protocol No. 6 without delay (Resolution 1044 (1994) on the abolition of capital punishment).
6. This fundamental objective to abolish the death penalty was also affirmed by the Second Summit of Heads of State and Government of member states of the Council of Europe (Strasbourg, October 1997). In the Summit’s Final Declaration, the Heads of State and Government called for the “universal abolition of the death penalty and [insisted] on the maintenance, in the meantime, of existing moratoria on executions in Europe”. For its part, the Committee of Ministers of the Council of Europe has indicated that it “shares the Parliamentary Assembly’s strong convictions against recourse to the death penalty and its determination to do all in its power to ensure that capital executions cease to take place”.[2] The Committee of Ministers subsequently adopted a Declaration “For a European Death Penalty-Free Area”.[3]
7. In the meantime, significant related developments in other fora had taken place. In June 1998, the European Union adopted “Guidelines to its Policy Toward Third Countries on Death Penalty” which, inter alia, state its opposition to this penalty in all cases. Within the framework of the United Nations, a Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, was adopted in 1989. For a few years, the Commission on Human Rights has regularly adopted Resolutions which call for the establishment of moratoria on executions, with a view to completely abolishing the death penalty. It should also be noted that capital punishment has been excluded from the penalties that the International Criminal Court and the International Criminal Tribunals for the Former Yugoslavia and Rwanda are authorised to impose.
8. The specific issue of the abolition of the death penalty also in respect of acts committed in time of war or of imminent threat of war should be seen against the wider background of the above-mentioned developments concerning the abolition of the death penalty in general. It was raised for the first time by the Parliamentary Assembly in Recommendation 1246 (1994), in which it recommended that the Committee of Ministers draw up an additional protocol to the Convention, abolishing the death penalty both in peace- and in wartime.
9. While the Steering Committee for Human Rights (CDDH), by a large majority, was in favour of drawing up such an additional protocol, the Committee of Ministers at the time considered that the political priority was to obtain and maintain moratoria on executions, to be consolidated by complete abolition of the death penalty.[4]
10. A significant further step was made at the European Ministerial Conference on Human Rights, held in Rome on 3-4 November 2000 on the occasion of the 50th anniversary of the Convention, which pronounced itself clearly in favour of the abolition of the death penalty in time of war. In Resolution II adopted by the Conference, the few member states that had not yet abolished the death penalty nor ratified Protocol No. 6 were urgently requested to ratify this Protocol as soon as possible and in the meantime, respect strictly the moratoria on executions. In the same Resolution, the Conference invited the Committee of Ministers “to consider the feasibility of a new additional protocol to the Convention which would exclude the possibility of maintaining the death penalty in respect of acts committed in time of war or of imminent threat of war” (Paragraph 14 of Resolution II). The Conference also invited member states which still had the death penalty for such acts to consider its abolition (ibidem).
11. In the light of texts recently adopted and in the context of the Committee of Ministers’ consideration of the follow-up to be given to the Rome Conference, the Government of Sweden presented a proposal for an additional protocol to the Convention at the 733rd meeting of the Ministers’ Deputies (7 December 2000). The proposed protocol concerned the abolition of the death penalty in time of war as in time of peace.
12. At their 736th meeting (10-11 January 2001), the Ministers’ Deputies instructed the CDDH “to study the Swedish proposal for a new protocol to the Convention […] and submit its views on the feasibility of a new protocol on this matter”.
13. The CDDH and its Committee of Experts for the Development of Human Rights (DH-DEV) elaborated the draft protocol and the explanatory report thereto in the course of 2001. The CDDH transmitted the draft protocol and explanatory report to the Committee of Ministers on 8 November 2001. The latter adopted the text of the Protocol on …. at the ….th meeting of the Ministers’ Deputies and opened it for signature by member states of the Council of Europe on ….. .
Commentary on the provisions of the Protocol
Article 1: Abolition of the death penalty
14. This article, which must be read in conjunction with Article 2 of the Protocol, affirms the principle of the abolition of the death penalty. This entails theobligation to abolish this penalty in all circumstances, including for acts committed in time of war or of imminent threat of war. The second sentence of this article aims to underline the fact that the right guaranteed is a subjective right of the individual.
Article 2: Prohibition of derogations
15. Article 15 of the Convention authorises the Contracting Parties, “in time of war or other public emergency threatening the life of the nation”, to take measures derogating from their obligations under the Convention. This Protocol aims precisely at the abolition of the death penalty also in time of war or of imminent threat of war. In view of the very object and purpose of this Protocol, the applicability of Article 15 of the Convention has been excluded.
Article 3: Prohibition of reservations
16. This article specifies, as an exception to Article 57 of the Convention, that states may not make a reservation in respect of the Protocol.
Article 4: Territorial application
17. This is the territorial application clause contained in the Model Final Clauses adopted by the Committee of Ministers in February 1980. Its wording follows closely that of Article 5 of Protocol No. 6 to the Convention. This clause was included only to facilitate a rapid ratification, acceptance or approval by the states concerned. The purpose of paragraph 3 is merely to make allowance for formal withdrawal or modification in case the State Party ceases to be responsible for the international relations of a territory specified in such declaration and not to allow in any way states to re-introduce the death penalty in such territory.
Article 5: Relationship to the Convention
18. The purpose of this article is to clarify the relationship of this Protocol to the Convention by indicating that all the provisions of the latter shall apply in respect of Articles 1 to 4 of the Protocol. These provisions of course include the protection machinery established by the Convention. This means, inter alia, that a declaration made under Article 4, paragraphs 1 or 2, of the Protocol ipso facto entails the extension of the Court’s competence to the territory concerned.
19. As an additional Protocol, it does not, as far as the Parties to the Protocol are concerned, supersede Article 2 of the Convention, since the first sentence of paragraph 1 and the whole of paragraph 2 of that article still remain valid, even for those states. It is clear that the second sentence of paragraph 1 is no longer applicable in respect of the States Parties to this Protocol. To the extent that these States Parties have also ratified Protocol No. 6 to the Convention, they willno longerbe able to avail themselves of the possibility provided for in Article 2 of Protocol No. 6. In accordance with Article 32 of the Convention, any questions concerning the precise relationship between these Protocols and between this Protocol and the Convention fall within the jurisdiction of the European Court of Human Rights.
Article 6 – Signature and ratification
Article 7 – Entry into force
Article 8 - Depositary functions
20. The provisions of Articles 6 to 8 correspond to the wording of the Model Final Clauses adopted by the Committee of Ministers of the Council of Europe.
[1] European Court of Human Rights, judgment in the case of Streletz, Kessler and Krenz v. Germany, 22 March 2001, in particular paragraphs 72, 85, 87 and 94.
[2] Reply of the Committee of Ministers to Parliamentary Assembly Recommendations 1246 (1994) and 1302 (1996) concerning the abolition of the death penalty, adopted at the 628th meeting of the Ministers’ Deputies (15-16 April 1998).
[3] Adopted at the 107th Session on 9 November 2000.
[4] Reply to Parliamentary Assembly Recommendations 1246 (1994) and 1302 (1996) concerning the abolition of the death penalty, adopted by the Ministers’ Deputies at their 628th meeting (15-16 April 1998).