The erroneous and counter-productive claim that under the Lisbon Treaty the EU could use the death penalty as a legal means of repression continues to surface, most recently in comments on Daniel Hannan’s blog:
http://blogs.telegraph.co.uk/politics/danielhannan/april08/yetmoresleaze.htm
Firstly, it is necessary to distinguish between judicial killings, and extra-judicial killings.
A judicial killing requires that a person has been tried by a court and found guilty, and a legally prescribed death sentence is then carried out.
Article 2 of the 1950 European Convention (for the Protection of Human Rights and Fundamental Freedoms) did not prohibit such judicial killings, as many of the signatory countries wished to retain the death penalty for murder and some other crimes. In any case, over the previous decades the main problem had not been judicial, but extra-judicial, killings, in huge numbers.
So Article 2 was directed only against extra-judicial killings:
http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf
“1 Everyone’s right to life shall be protected by law. 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.”
with some necessary exemptions.
Prohibition of judicial killings came later, with Protocols 6 and 13, and by incorporating the latter Protocol, far from allowing the EU to “restore the death penalty” the Lisbon Treaty would entrench an absolute protection against judicial killing.
Extra-judicial killings span a spectrum extending from completely intentional killings, including those carried out during war and when there is a state of martial law, to genuinely accidental killings.
This is where we have more cause to fear for our lives, with the possibility that the European Gendarmerie Force:
http://www.eurogendfor.org/
could be let loose on our streets, and potentially later foreign troops in an EU “peace-keeping” or “stabilisation” force being sent in “to restore order” and “secure the rights and freedoms of Union citizens within the United Kingdom”.
About this misunderstanding, in more detail:
The consolidated texts of the EU treaties as amended by Lisbon, available here:
http://www.official-documents.gov.uk/document/cm73/7310/7310.asp
have Article 6 of the amended TEU, on page 7, which starts:
“1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.”
That December 2007 adaptation of the EU’s Charter, and the Explanations, are here:
http://eur-lex.europa.eu:80/JOHtml.do?uri=OJ%3AC%3A2007%3A303%3ASOM%3AEN%3AHTML
As in 2000, Article 2 of the EU’s Charter states:
“Right to life
1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.”
The Explanation of this Article is also unchanged from 2000, even though Protocol 13 to the European Convention, abolishing the death penalty in all circumstances:
http://conventions.coe.int:80/Treaty/en/Treaties/Html/187.htm
came into force on 1 July 2003. Presumably this was because while all EU member states have signed Protocol 13, four of them – Italy, Latvia, Poland and Spain – have not yet finally ratified it. No doubt they will do so in due course: France was the latest to complete ratification, in October 2007.
Hence the last section, 3(b), of the Explanation no longer has any practical relevance.
The other words in this Explanation which have led to misunderstanding are actually quoted driectly from Article 2(2) of the 1950 European Convention. The UK has been a party to that Convention since its inception, so we have been living with that Article for over half a century. This is not something new which the EU is introducing with the Lisbon Treaty.
Note also how the Explanation refers to the necessary exemptions in Article 2(2) as ‘negative’ definitions.
“Explanation on Article 2 — Right to life
1. Paragraph 1 of this Article is based on the first sentence of Article 2(1) of the ECHR, which reads as follows:
‘1. Everyone’s right to life shall be protected by law …’.
2. The second sentence of the provision, which referred to the death penalty, was superseded by the entry into force of Article 1 of Protocol No 6 to the ECHR, which reads as follows:
‘The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.’
Article 2(2) of the Charter is based on that provision.
3. The provisions of Article 2 of the Charter correspond to those of the above Articles of the ECHR and its Protocol. They have the same meaning and the same scope, in accordance with Article 52(3) of the Charter. Therefore, the ‘negative’ definitions appearing in the ECHR must be regarded as also forming part of the Charter:
(a) Article 2(2) of the ECHR:
‘Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.’
(b) Article 2 of Protocol No 6 to the ECHR:
‘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; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions…’.”
