EU Policy On The Death Penalty
EU MEMORANDUM ON THE DEATH PENALTY
"If
I can prove that this punishment is neither useful nor necessary, I will have
furthered the cause of humanity."
Cesare Beccaria,
Dei delitti e delle pene (1764)
1. Europe: Road to
Abolition
2. The Common Basis for Abolition: Values, Principles
and Criminal Policy
3. Envisaging Altenative Sanctions
4. International Context
5. Juvenile Justice
The European Union (EU) is opposed to the
death penalty in all cases and has consistently espoused its universal abolition,
working towards this goal. In countries which maintain the death penalty, the
EU aims at the progressive restriction of its scope and respect for the strict
conditions, set forth in several international human rights instruments, under
which the capital punishment may be used, as well as at the establishment of a
moratorium on executions so as to completely eliminate the death penalty.
The EU is deeply concerned about the increasing number of executions in the
United States of America (USA), all the more since the great majority of executions
since reinstatement of the death penalty in 1976 have been carried out in the
1990s. Furthermore, it is permitted to sentence to death and execute young offenders
aged under 18 at the time of the commission of the crime, in clear infringement
of internationally-recognised human rights norms.
At the dawn of a new millennium the EU wishes to share with the USA the principles,
experiences, policies and alternative solutions guiding the European abolitionist
movement, all the EU Member States having abolished the death penalty. By doing
so, the EU hopes that the USA, which has risen upon the principles of freedom,
democracy, the rule of law and respect for human rights, considers joining the
abolitionist vanguard, including as a first step towards abolition establishing
a moratorium in the use of the death penalty, and by this way becoming itself
a paradigm for retentionist countries.
1. Europe: On the Road to Abolition
In Western Europe the death penalty issue aroused the attention of some circles
within society at an early stage. Included among the instruments of both criminal
law and criminal policy through ages, capital punishment soon raised a debate
on humanitarian values. This evolution in attitudes to the death penalty began
particularly in the context of the establishment of the democratic State in the
18th century and since then, step by step, it has gained the support of the peoples
of the States nowadays assembled in the European Union.
In fact, the questioning of the legitimacy of the death penalty dawned in the
context of the Enlightenment, at the end of the 18th century. At that time deprivation
of liberty was the preferred means of criminal punishment, in parallel with the
rise of classic criminal law. Although early attempts to repeal the death penalty
were not a total success, several European countries had by then accepted the
limitation of the death penalty to capital crimes and reformed their law accordingly.
This trend towards restriction of the scope of capital punishment would continue
throughout the next two centuries, although not without various backward steps
due to particular political circumstances.
Nevertheless some of those countries went even further and definitively abolished
the death penalty in their laws for ordinary crimes. Portugal led the way in 1867,
immediately followed by the Netherlands. Sweden and Denmark joined this abolitionist
movement after the First World War. After the Second World War, Italy, Finland
and Austria did likewise. The mid-century was also the time for Germany to outlaw
capital punishment, encompassing abolition for all crimes. In the 1960s and 1970s,
the United Kingdom and Spain also became legally abolitionist for civil crimes.
In the meantime the trend towards abolition for all crimes, thus including
crimes under military law or committed in exceptional circumstances such as during
wartime, was also affirmed. Since the end of the 1960s, all EU Member States have
absolutely abandoned the death penalty in law.
From this, it is clear that for the majority of Member States the total abolition
of capital punishment was achieved in two stages of which the second was, in general,
a lengthy process. Furthermore, it has to be stressed that, although countries
such as the United Kingdom, Spain, Luxembourg, France, Ireland, Greece and Belgium
maintained the death penalty in their laws into the second half of this century,
executions took place quite rarely or else this form of punishment simply remained
unused. In fact, a long period of time generally passed between the carrying out
of the last execution and abolition of the death penalty, which leads to the conclusion
that when European countries formally abandoned capital punishment they were already
abolitionist de facto or even by tradition, capital punishment having clearly
fallen into disuse in judicial practice.
On the other hand, while in some EU Member States abolitionist measures have
met the deep sentiment of the population and thus corresponded to the accomplishment
of a national tradition, in others the political decision towards abolition was
not taken with the support of the majority of public opinion. Nevertheless in
countries where this was the case, the decision did not result in any form of
negative reaction, usually leading to minimal debate on the issue. Therefore,
mention should be made of the fact that abolition itself contributed favourably
to better-informed public opinion, which helped to shape different feelings among
community members.
2. The Common Basis for Abolition: Values,
Principles and Criminal Policy
The death penalty poses a set of distinct questions of a philosophical, religious,
political and criminological nature. Although Member States’ experiences
in abolition varied in time, they shared common ground – that of the inhumane,
unnecessary and irreversible character of capital punishment, no matter how cruel
the crime committed by the offender. Besides, this justification now seems to
be shared by the international community as a whole, insofar as both the Rome
Statute of the International Criminal Court and the United Nations Security Council
Resolutions establishing the International Criminal Tribunals for the former Yugoslavia
and for Rwanda do not provide the death penalty among the range of sanctions,
even when the most serious crimes, including genocide, crimes against humanity
and war crimes are to be tried.
Humanistic values, ethical points of view and human rights reasons weighed
in favour of the abolition of the death penalty. Effectively, for the European
Governments the death penalty as a means of State punishment rapidly revealed
itself as a denial of human dignity, which is a fundamental basis of the common
heritage of the European Union as a union of shared values and principles.
At the same time, there is insufficient justification on either criminal or
criminological grounds for maintaining such a punishment. First of all, it is
scientifically undemonstrated that the death penalty and its application deter
criminality any more effectively than other forms of punishment. Indeed, crime
rate and the death penalty are independent realities, capital punishment and its
execution failing to have a deterrent effect and thus to produce less violent
societies. Besides, maintaining capital punishment would not fit the philosophy
of rehabilitation pursued in the criminal justice systems of all EU Member States
and according to which one of the penological aims of penalties is that of rehabilitating
or resocialising the offender. Furthermore, emphasis is also placed upon the penological
goal of prevention, understood as a process ante delictum (before crime) and post
delictum (post-crime), implying the rejection of any form of brutality, either
physical or psychological, with a view to promoting respect for human rights and
preventing the development of an even more crime-ridden society. Last but not
the least, capital punishment should not be seen as an appropriate way of compensating
the suffering of crime victims’ families, as this view turns the justice
system into a mere tool of illegitimate private vengeance. This does not mean
that European criminal systems are insensitive to victims’ rights and interests.
Quite the contrary. Legislation safeguarding those rights, as well as victims’
assistance agencies and programmes are provided. Besides, there are appropriate
alternatives to the death penalty which respond to their needs and ensure adequate
assistance to them. Both offenders and victims’ families stand in need of
rehabilitation. As far as the later are concerned, it is essential that the emotion
caused by the loss they suffered is surmounted and this requires the availability
of financial and psychological support.
In the realm of judicial practice, the irreversible nature of capital punishment
has also to be taken into account. Even highly advanced legal systems, which rest
upon the principle of the rule of law, including the principle of due process,
are not immune to miscarriages of justice. That irreversibility removes any possibility
of correcting such miscarriages of justice, allowing for the execution of innocent
people. Judicial error, different interpretations of the law, conviction based
on unclear and non-convincing evidence, as well as lack of adequate legal assistance
at all stages of the proceedings, in particular where the offender is indigent,
are just some of the circumstances which may result in the innocent being executed.
As a result, criminal policy programmes were intentionally humanised in order
to pursue the view under which the State’s actions should not have human
beings as victims, but also that of the promotion of the human person as one of
the major purposes of criminology. Maintaining the death penalty would, instead,
bring to light undesirable expiatory features of criminal law. Accordingly, major
reform initiatives were carried out, restructuring the criminal sanctions so as
to make them more conducive mainly to the rationale of social rehabilitation and
reintegration of the offender in the community, simultaneously taking into account
the need to ensure the protection of society and to prevent crime, rather than
punish it.
3. Envisaging Alternative Sanctions
Opting for a more humane, but also more effective, criminal justice system
paved the way for considering appropriate alternative criminal sanctions to the
death penalty. In fact European lawmakers assumed that crime could be punishable
by means of non-lethal penalties, such as long-term or life imprisonment. In practice,
even when the death penalty was still contemplated in law, and even mandatory,
either the judge would decide upon an alternative penalty by reason of mitigating
circumstances or the sentence would be systematically the object of a pardon and
thus commuted.
Imprisonment for life remains the usual alternative for very serious crimes.
In any case, although nearly all Member States provide for this type of punishment
in their respective penal codes either as a possibility or mandatorily, it is
understood rather as a principle than as a common practice.
In some countries life imprisonment can indeed be replaced by temporary incarceration
once there are mitigating circumstances. Furthermore, in practically all Member
States parole can be granted to those sentenced to life after having served a
certain term in prison and depending on other factors, such as good behaviour,
signs of readaptation or illness. Commutation of the penalty by way of pardon
is also provided for in almost all the sanctions systems concerned. Moreover,
in some of these countries imprisonment for life simply can not be applied to
juveniles or to the mentally ill.
As to long-term imprisonment, the present criminal policy in the EU Member
States clearly shows a decreasing trust in the resocialising effect of long prison
sentences and is moving towards keeping imprisonment to an absolute minimum.
It is well established that long-term imprisonment, and above all imprisonment
for life, fails to achieve its criminal policy’s goals, unless relevant measures
are adopted in order to enable the return of the prisoner to social life at the
appropriate moment. In this context, the possibility of parole is of paramount
importance. In fact, a crime prevention policy which admits maintaining imprisoned
for life a convicted person who has served in prison a term corresponding to the
gravity of the committed crime and is no longer a danger to society, would fail
to meet either recognised minimum standards for the treatment of prisoners or
the goal of social rehabilitation which is achieved in view of the willingness
and ability of the offender to a lead a law-abiding and self-supporting life.
Moreover, it must be underlined that the United Nations (UN) Convention on the
Rights of the Child expressly deals with the issue of imprisonment for life imposed
on minors, stating that life imprisonment without the possibility of release shall
not be imposed for offences committed by persons below 18 years of age.
4. The International Context
The de jure abolitionist trend endorsed by European legislators, clearly evident
in the second half of this century, was also favoured by the international environment.
In fact, abolition of the death penalty soon became an issue of international
concern, contributing to the enhancement of human dignity and the gradual development
of human rights.
In 1971, the United Nations General Assembly in Resolution 2857 (XXVI) affirmed
the desirability of abolishing the death penalty in all countries. As for international
abolitionist treaties, the Council of Europe took the first steps in 1983 by adopting
Protocol No. 6 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR) concerning the Abolition of the Death Penalty. In
the framework of the UN a Second Optional Protocol to the International Covenant
on Civil and Political Rights (ICCPR) aiming at the abolition of the death penalty
was adopted in 1989. More recently, the Inter-American system for the protection
of human rights followed the abolitionist vanguard and the Organisation of American
States – of which the United States is a member – adopted the Protocol
to the American Convention on Human Rights to Abolish the Death Penalty in 1990.
Furthermore, strict conditions under which the death penalty may be used are
laid down in international human rights instruments, such as the ICCPR or the
UN Economic and Social Council (ECOSOC) Safeguards Guaranteeing Protection of
those Facing the Death Penalty. The EU seeks to ensure that in countries where
the death penalty has not been abolished executions are carried out in accordance
with those generally accepted safeguard standards. It particularly pays attention
to: imposition of capital punishment beyond the most serious crimes; retroactive
enforcement of the death penalty; imposition of capital punishment on pregnant
women or new mothers and on persons suffering from any form of mental disorder;
disrespect for procedural safeguards, including the right to a fair trial and
the right to petition for clemency; or inhumane enforcement of the death penalty.
Executions under these circumstances are contrary to internationally recognised
human rights norms and neglect the dignity and worth of the human person.
5. Juvenile Justice
The EU is equally concerned about the imposition of the death penalty on persons
below 18 years of age.
All the EU Member States reject the idea of incorrigibility of juveniles. These
States hold the view that the problem of juvenile delinquency should be addressed
bearing in mind that young offenders are in the process of full development, facing
several difficulties of adaptation. In addition, poor backgrounds, lack of success
at school and dependence on drugs are just some of the social problems affecting
them and fostering their criminal behaviour. As a result, they are less mature,
and thus less culpable, and should not be treated as adults, deserving a more
lenient criminal sanctions system. This implies, among other things, rejection
of death penalty for juveniles.
The European approach to juvenile justice is therefore deeply consistent with
internationally-recognised juvenile justice standards, as enshrined in the following
international human rights instruments: the UN International Covenant on Civil
and Political Rights, the ECOSOC Safeguards Guaranteeing Protection of those Facing
the Death Penalty, the UN Convention on the Rights of the Child and the American
Convention on Human Rights. In fact, the international norms in question expressly
prohibit sentencing to death persons below 18 years of age at the time of the
commission of the crime. A similar prohibition is set out in the fourth Geneva
Convention of 1949 relative to the Protection of Civilian Persons in Time of War
and Additional Protocols of 1977 to the Geneva Conventions.
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The EU and its Member States base their action on the inherent dignity of all
human beings and on the inviolability of the human person.
Offenders are human beings who committed a crime but who also enjoy an inherent
and inalienable dignity, the very same dignity claimed by rationalist philosophy,
all relevant religions and by law, the death penalty being a denial of human dignity.
The criminal justice system of a country, and in particular its sanctions system,
may reflect traditions and specific historical aspects of a society. However,
the death penalty issue is, above political, legal or criminal considerations,
a question of humanity. Humanisation of the problem of capital punishment should
be a decisive aspect of a people’s life.
Long ago European countries, either in practice or in law, made a choice for
humanity, abolishing the death penalty and thus fostering respect for human dignity.
And this is an ultimate principle that the EU wishes to share with all countries,
as it shares other common values and principles such as freedom, democracy, and
the rule of law and safeguard of human rights. If it succeeds in reaching this
goal, both the EU and those countries will have furthered the cause of humanity,
as Beccaria foretold. The EU thus invites the USA to equally embrace this cause.
