The death penalty

The EU has actively pursued its policy against the death penalty during the period covered by this report.

The EU is opposed to the death penalty in all circumstances and systematically upholds this position in its relations with third countries. It considers that the abolition of the death penalty contributes to the enhancement of human dignity and the progressive development of human rights.

The Guidelines on EU policy towards third countries on the death penalty (adopted in 1998) provide the basis for action of the Union. These guidelines provide criteria for making representations and outline minimum standards to be applied in countries retaining the death penalty. The EU also presses, where relevant, for moratoria to be introduced as a first step towards the abolition of the death penalty.

General representations consist in the EU raising the issue of the death penalty in its dialogue with third countries. Such démarches occur particularly when 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 likely to be ended, or where the death penalty is to be reintroduced through legislation. Similarly, a démarche or public statement may be made where countries take steps towards abolition of the death penalty. Individual representations are used in specific cases where the European Union becomes aware of individual death penalty sentences which violate minimum standards. These standards provide, inter alia, that capital punishment cannot be imposed on those who were under the age of 18 when committing the crime, pregnant women or new mothers, and persons

who are mentally disabled. The EU raised the question of the death penalty with the governments of Japan, the USA, China, Pakistan, Syria, Kuwait, Barbados, Yemen, the Palestinian Authority, Libya, Iran, Uzbekistan, Sri Lanka, Vietnam, India, Indonesia and Bangladesh.

According to Amnesty International’s report for 2004, nearly 4,000 people were executed worldwide in 2004. More than half of these executions took place in China. Iran had the second highest number with at least 159 executions, followed by Vietnam with at least 64 and the USA with 39. It should be noted, however, that the number of executions in the USA has been steadily declining over the past years²².

The EU is pleased that 44 of the 46 Council of Europe member states have ratified Protocol No.6 to the European Convention on Human Rights concerning the abolition of the death penalty. The Russian Federation and Monaco have yet to ratify Protocol 6. As regards Protocol No 13, which bans the death penalty in all circumstances, including in wartime, 32 member states have now ratified it, including 18 EU member states.

Among the positive developments, the following five countries abolished the death penalty for all crimes in 2004: Bhutan, Greece, Samoa, Senegal and Turkey. With respect to Kyrgyzstan, President Akayev announced that the moratorium on executions, in place since 1998, would be extended for one more year.

Regarding Tajikistan, the moratorium in place was endorsed on 8 July 2004 by a law “on the suspension of the application of the death penalty”.

With regard to action in multilateral fora, the EU continued its well-established practice of initiating a resolution on the death penalty at the UN Commission on Human Rights (CHR). All EU member states supported the resolution on extra-judicial, summary or arbitrary executions presented by Finland at UNGA Third Committee. The resolution, adopted at the 61st Session of the CHR in 2005, presented by Sweden and co-sponsored by 81 countries, reiterated the call for a world-wide moratorium on executions and called on states to accede to the Second Optional Protocol to the International Covenant on Civil and Political Rights, which aims to abolish the death penalty. In its statement to the Commission, the EU regretted the end of moratoria in Lebanon and Indonesia, and the end of the de facto moratorium in India; called on Burundi, Sri Lanka and Mauritania not to re-start executions; and regretted the interruption of the moratorium in Afghanistan, as well as the decision by the Iraqi interim government to reintroduce the death penalty into its legislation.

22 Other reporting suggests that some of these figures may be conservative. The true figures are likely to be higher, given the difficulty in compiling statistics.

With respect to EU action in the United States, there have been some notable rulings of the US Supreme Court. Following Atkins v Virginia, in which the Court held that the execution of the mentally retarded was in violation of the US Constitution, many mental retardation cases have been stayed pending mental evaluation. The State courts are struggling with the definition of mental retardation owing to the fact that the US Supreme Court left this critical decision to the States. Many lawyers are now challenging the convictions of their clients based on the Atkins decision.

The US Supreme Court, in an important ruling of 1 March 2005, declared executions of minors unconstitutional in the case of Simmons v Missouri. It is significant that the EU had submitted an amicus curiae (“friend of the court”) brief to the Court in this case. The Supreme Court also specifically referred to

“the weight of international opinion” among the motives for its decision.

The Second World Congress against the Death Penalty took place in Montreal, Canada on 6-9 October 2004.

This was an important gathering of those involved in the fight against the death penalty worldwide, organised by the NGO coalition: “Together against the Death Penalty”. Discussions covered a broad range of issues, including enhanced strategies for abolition, especially with respect to the USA and Japan. The EU was represented by the Dutch Presidency and member states, the European Parliament Human Rights Subcommittee and the Commission.

The World Day against the Death Penalty was celebrated immediately after the World Congress, on the 10 October, in a public demonstration in the streets of Montreal in Canada.

EIDHR: The Application of the Death Penalty in Commonwealth Africa: ' Legal Tools for Commonwealth Africa'

25 of the 78 countries which continue to apply the death penalty for ordinary crimes are situated in the African continent. The British Institute of International and Comparative Law (BIICL) implemented the project across 13 countries: Botswana, Cameroon, Ghana, Kenya, Lesotho, Swaziland, Malawi, Nigeria, Tanzania, Uganda, Zambia, Zimbabwe and Sierra Leone. The project addressed the identified need for comparative legal information on the death penalty in Commonwealth Africa and more importantly, the lack of an information sharing network at a regional level on this topic. The project aimed to strengthen the capacity of lawyers and judges to challenge the death penalty through the compilation of legal materials, specific to each of the target countries, and legal materials based on the comparable aspects of the legal systems in the countries involved.

The Human Rights Manual and Sourcebook for Africa, due to be published in 2005, is the culmination of this research into relevant jurisprudence, case studies on successful death penalty litigation (for example in Uganda) and conditions on death row in each of the target countries. Simultaneously, an information-sharing network of lawyers, judges and civil society groups has also been established to share successful strategies and experiences on the death penalty. Training courses and workshops for African judges and lawyers on how to use comparative legal materials have also been conducted during 2004 and 2005 in partnership with the Bar Human Rights Committee in the UK. The project ended in June 2005.