Fourteenth United Nations Congress on Crime Prevention and Criminal Justice

7-12 March 2021 - Kyoto, Japan

The death penalty: a global perspective

Speech by Tatiana Termacic, Head of Coordination and International Cooperation Division

 

I would like to thank Amnesty International, and in particular Chiara Sangiorgio, for inviting me to this important discussion.

The UN Crime Congress provides a unique forum to address the link between respect for human rights and efficient fight against crime and is a great opportunity to recall the importance of multilateralism in addressing these issues.

The Council of Europe’s experience shows that respect for human rights and rule of law when delivering criminal justice contributes to a more efficient fight against crime and is essential for its prevention. Abolition of the death penalty is a crucial step to break an endless cycle of violence, which prevents justice from prevailing.

The Council of Europe and its 47 member states have created a death-penalty free zone for nearly a quarter of a century. Abolition of the death penalty has become part of the European acquis. Thus, any attempt to reintroduce the death penalty would have immediate consequences on the country’s status vis-à-vis the Organisation. This prohibition has also an impact outside the European territory through proceedings in the European Court of Human Rights.

The prohibition of the death penalty in law and practice is the precondition for the Council of Europe’s policies to prevent crime and the root causes of crime, and to improve the criminal justice systems of its member states. It has also been a precondition for membership since the 90’.

How did we get there?

The death-penalty free zone that is Europe today – with the exception of Belarus – looked different more than 70 years ago, when the ECHR was drafted. At that time, the death penalty was not considered to violate international standards. An exception was therefore included to the right to life, which provided for the possibility of death sentence following a court conviction of a crime for which this penalty was provided by law.

From the late 1960s, a consensus began to emerge in Europe that the death penalty seemed to serve no purpose in a civilised society governed by the rule of law and respect for human rights. PACE played a leading role in the move towards abolition by confirming, in a momentous debate in 1980, that the death penalty was inhuman. 

This led to the CoE adopting in 1983 the first legally binding instrument providing for the unconditional abolition of the death penalty in peacetime: Protocol No. 6 to the ECHR. This text is currently ratified by 46 of the 47 member states, the remaining state being committed to ratification and has put in place a moratorium.

In 2002, the CoE adopted Protocol No. 13 to the ECHR concerning the abolition of the death penalty in all circumstances, in other words also in time of war or of imminent threat of war. Reservations to and derogations from the Protocol are not possible. The Protocol entered into force on 1 July 2003. It has to date been signed and ratified by 44 member states.

The last execution in Europe took place in 1997.

Are we now complacent?

The abolition of the death penalty has been achieved through a top-down approach in most CoE member states. The experience of Central and Eastern countries has been diverse. In some cases, abolition was undertaken with enthusiasm, in others, with indifference. In a few cases, such as in Albania and Ukraine, there was resistance. In Ukraine, executions were carried out until 1997, that is two years after it joined the Council of Europe. The Council of Europe had threatened that it would suspend Ukraine’s membership and eventually, it was the Constitutional Court of Ukraine which saved the day by ruling the death penalty unconstitutional [in December 1999].

Although public opinion was not in every case clearly in favour of abolition, it did not result in any major objections once abolition was introduced. One has to note that on the occasion of particularly gruesome crimes, very few ask for the re-introduction of the death penalty.

The risk of any serious initiatives towards the re-introduction of the death penalty in any CoE member state is considered to be low. In reality, when the issue of re-introduction is raised by the authorities, it is solely for internal purposes as a topic to distract from real difficulties, such as economic crisis.

However, we cannot let our guard down because dormant support for the death penalty may still exist in some member states and it is important to dry out from the outset the ground for populist calls for reintroduction. For this reason, abolition of the death penalty remains high on the Council of Europe’s political agenda. Since 2001, the Committee of Ministers has held regular exchanges of views on the abolition of the death penalty in all member States as well as its observer or candidate States. The PACE has a rapporteur on abolition of the death penalty who reports regularly to the Assembly.

Exporting the death-penalty free zone

Commitment to the abolition of the death penalty does not stop at Europe’s borders. Therefore, Heads of State or Government called for universal abolition at the CoE’s 2nd Summit held in 1997. Universal abolition can only be achieved by joining efforts with other international organisations, and this has been the CoE’s strategy to contribute to outlawing this cruel punishment in the minority of countries that still retain it in law. The UN and the EU are two major partners in this respect.

Thus, the CoE supports the United Nations General Assembly Resolution calling for a worldwide moratorium on the use of death penalty. This item remains on the agenda of the Committee of Ministers’ exchange of views with experts from capitals on the cooperation with the UN held every year in February.

However, it is highly regrettable that the reference to the CoE member states’ commitment to the abolition of the death penalty is systematically removed from the UNGA Resolution on the cooperation with the Council of Europe. This always happens in the last round of consultations, as was the case for the latest Resolution on the topic adopted on 3 March.

The Council of Europe and the EU have teamed up to encourage all countries to join the global Alliance for Torture-Free Trade. Also, on the occasion of the World and European Day against the Death Penalty on 10 October, the Secretary General and the EU’s High Representative issue a joint statement.

Two of the Council of Europe’s observer states maintain capital punishment: the US, which enjoys this status since 1995, and Japan, which is celebrating its 25th anniversary as an observer state. The situation in these two countries is being examined in the biannual exchange of views at the CM and the permanent representatives are invited to present the state of play in their respective country. If asked, the Council of Europe would gladly share its experience in abolishing the death penalty with these two countries, as well as with the neighbourhood countries, such as Morocco and Tunisia, with whom the Council of Europe entertains a special relationship as well.

While, undoubtedly, political leadership only is sufficient to achieve abolition, it is important to understand which are the obstacles preventing abolition because working to remove them can help build this indispensable political will in the respective countries.

Historically, public opinion has never been the driver for abolition. However, maintaining legitimacy in the policies of the country is important. As all studies show, the less people know about the topic, the more they are in favour of keeping the death penalty. Studies have also shown that attitudes to sentencing become less punitive when people are provided with fuller information. This is even more evident when such information is combined with dialogue. Therefore, it is important to underline the vital role of the media in providing reliable information on the issue of capital punishment and its application so that the public becomes less uninformed or is not misinformed. This also extends to the way serious crimes, such as serial murders, terrorism or crimes against children, are being reported by journalists.

Apart from the political institutions of the Council of Europe, the PACE and the CM, the European Court of Human Rights also plays a role in limiting the use of the death penalty outside Europe. The landmark case in this respect is Soering v. UK, in which the Strasbourg Court considered that extradition to the US would constitute a violation of the prohibition of torture and inhuman and degrading treatment and punishment because of the phenomenon of death row (1989). Since then, the Court has developed a rich and consistent case law directed at preventing persons being put at risk of the use of the death penalty.

It said that the risk of being sentenced to death after extradition constituted a violation of Articles 2 and 3 (Bader and Kambor v. Sweden, 2005). The cases of persons held in CIA black sites on CoE member States’ territory were examined notably in Al-Nashiri v. Poland (2014), where a violation was established as well. In this judgment, the Court held that there had been a violation by Poland of Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 to the Convention by having enabled the CIA to transfer the applicant to the jurisdiction of the military commission and thus exposing him to a foreseeable serious risk that he could be subjected to the death penalty following his trial. The Court went even further in Al-Saadoon & Mufdhi v. the United Kingdom (2010) ruling that the death penalty was as such contrary to the ECHR.

There are a number of other legal instruments having a connection with the issue of the death penalty. For example, the European Convention on Extradition provides that extradition may be refused if the offense for which the extradition is requested is punishable by the death penalty unless the Requesting Party provides insurances that it will not be carried out. An important development, expected in Spring 2021, will be the adoption by the CM of a recommendation on measures against the trade of goods used for the death penalty, torture and other inhuman or degrading treatment and punishment.

Slow progress in Belarus

There are many reasons why Belarus is not part of the CoE, and one is that the death penalty has not been abolished. Belarus’ special guest status in PACE was frozen as a result of the 1996 Referendum, which allowed Alexander Lukashenko to stay in power beyond the two mandates provided by the Constitution. In the same referendum there was a question on whether or not the death penalty should be abolished and more than 80% voted for its retention. It is important to note that at that time, the only alternative was 15 years of imprisonment. Since then, life imprisonment has been introduced in the Criminal Code.

Belarus is the typical example where the authorities use public opinion as a curtain to hide a lack of political will. Lukashenko is openly a proponent of capital punishment.

The Council of Europe has been having a dialogue with the authorities and has supported civil society initiatives for over two decades. All the arguments in favour of abolition have been repeated over and over again. The single response we have been getting is: “we cannot go against the will of public opinion”.

Nonetheless, there have been three concrete areas of progress: in 2004, the Constitutional Court declared that the death penalty – provided in the Constitution itself – should be a temporary measure, so that ultimately, it should be abolished.

Also, a parliamentary working group was established over a decade ago, and in 2019, following our advice, the authorities changed its name from “working group on the study of the question of the death penalty” to “WG on the study of the question of the abolition of the death penalty”. The outburst of the COVID pandemic has prevented the CoE from providing support to the new composition of the WG, notably as regards the development of specific terms of reference with expected results clearly defined.

A last area of progress has been that, prior to the 9 August elections, the civil society had become an interlocutor of the authorities in the dialogue on abolition.

No one can predict what will unfold in Belarus in the coming weeks or months. It is not excluded that, for reasons unrelated to human rights, the death penalty could be abolished as part of the constitutional reform launched by Lukashenko. That would be welcome regardless of the overall human rights situation. Also, the democratic opposition has already confirmed its commitment to abolish the death penalty.

What comes after abolition

It is important to remember that abolition of the death penalty is not an end in itself. It is in fact the beginning of another essential process for our democratic societies respectful of human rights and the rule of law: the transformation of punitive justice into restorative justice, where the rights of victims are fully taken into account and the right to legitimate hope of persons deprived of their liberty [or detained to avoid repetition] of being released, recognized. The objective is to put in place a criminal response where all feelings of revenge are rooted out, so that justice for all is achieved.

Let’s not forget that the European Court of Human Rights has recognised a “right to hope” as regards life imprisonment in its judgment Vinter and others v. UK (2008):  for a life sentence to remain compatible with Article 3, there has to be a prospect of the prisoner’s release and the possibility of a review of the sentence.

Prohibiting the death penalty does not mean being lenient on combating crime. The Council of Europe has developed a panoply of standards and tools aiming at an efficient fight against crime, notably through international cooperation.

Last but not least, education plays an important role to raise the awareness of young people on the right to life and abolition. The CoE guidebook "Milestones", on practicing human rights education with young people, provides tools for discussing these issues with them.

Conclusion

The arguments against the death penalty are well-known. It is cruel. Irreversible. Discriminatory. It has no restorative effect on victims of crime. It is not dissuasive. It is ineffective, incompatible with fundamental rights. Socially unnecessary and morally unacceptable. A state cannot claim to be delivering justice if it annihilates human dignity by using violence.

The goals set in the 2030 agenda would undoubtedly be missed if the vision of justice and rule of law that is promoted is not aligned with the promotion and protection of human rights and dignity of all.

Indeed, how can one really believe that killing the perpetrators of crimes achieves justice for both victims and the society as a whole?

The Council of Europe stands ready to share its experience to achieve abolition of the death penalty worldwide and to support the reforms to criminal justice systems that respect the rights of the victims, the accused and all those involved.