GEN

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DG C 1

COUNCIL OF

THE EUROPEAN UNION

Brussels, 12 April 2013

8416/13

COHOM 64

PESC 403

213

"I/A" ITEM NOTE

from:

Political and Security Committee

to:

Permanent Representatives Committee/ Council

No. prev. doc

8372/13 COHOM 63 PESC 393

Subje

ct:

Guidelines on Death Penalty

COMMON GUIDELINES

Consultation deadline: 16.4.2013

1. The Working Group on Human Rights (COHOM) established, on 2 April 2013, the revised

draft "EU Guidelines on Death Penalty", as set out in the Annex.

2. On 12 April 2013, the Political and Security Committee endorsed the above-mentioned draft

text.

3. COREPER is therefore invited to approve the draft EU Guidelines on Death Penalty and

submit them to the Council for adoption.

_______________________

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ANNEX

EU GUIDELINES ON DEATH PENALTY

I. INTRODUCTION

i. The European Union has a strong and unequivocal opposition to the death penalty in all

times and in all circumstances.

Therefore, and encouraged by the growing momentum

towards abolition of the death penalty worldwide, the EU will continue its long-standing

campaign against the death penalty.

ii. The United Nations, inter alia in the International Covenant on Civil and Political

Rights (ICCPR), the Convention on the Rights of the Child (CRC) and in the ECOSOC

Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty,

has established strict conditions under which the death penalty may be used by those

Member States which have not yet abolished it

. The Second Optional Protocol to the

ICCPR commits each State Party to take all necessary measures to permanently abolish

the death penalty within its own jurisdiction.

iii. During the 62

, 63

, 65

and 67

sessions of the United Nations General Assembly,

the Plenary of the General Assembly adopted, with increasing majorities, Third

Committee resolutions on a Moratorium on the use of the death penalty (62/149,

63/168, 65/206 and 67/176). The European Union actively participated in the cross-

regional alliance which successfully led and guided these initiatives through the General

Assembly and all EU Member States co-sponsored these initiatives. In these resolutions,

the General Assembly calls upon all States that still maintain the death penalty to:

1 EU/Council of Europe Joint Declaration on World Day Against the Death Penalty 10 October 2012.

2 EU Strategic Framework and Action Plan on Human Rights and Democracy, Luxembourg, 25 June 2012,

11855/12.

3 Clear distinction made by the Human Rights Committee in Judge v Canada Communication No. 829/1998, U.N.

Doc. CCPR/C/78/D/829/1998 (2003).

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- Respect international standards that provide safeguards guaranteeing the

protection of the rights of those facing the death penalty, in particular the

minimum standards

;

- Make available relevant information with regard to their use of the death penalty

which can contribute to possible informed and transparent national and

international debates;

- Progressively restrict the use of death penalty and not to impose capital

punishment for offences committed by persons below eighteen years of age and

on pregnant women;

- Reduce the number of offences for which the death penalty may be imposed;

- Establish a moratorium on executions with a view to abolishing the death

penalty.

These General Assembly resolutions also call upon States which have abolished the

death penalty not to reintroduce it and encourage them to share their information in this

regard.

The UNGA 67 Resolution also calls upon States that have not yet done so to consider

acceding to or ratifying the Second Optional Protocol to the International Covenant on

Civil and Political Rights aiming at the abolition of the death penalty.

These General Assembly resolutions are in line with the resolutions on the death penalty

as adopted by the Commission on Human Rights in all consecutive sessions, the last

being resolution 2005/59.

The EU supports the call that all United Nations agencies, intergovernmental regional

bodies and NGOs should continue to support States in abolishing the death penalty

through their advocacy, monitoring and technical cooperation activities

United Nations Economic and Social Council Safeguards Guaranteeing Protection of Rights of those Facing the

Death Penalty, ECOSOC Res. 1996/15, UN Doc E/CN.15/1996/15 (1996).

UNGA RES 67/176.

UNGA RES 67176.

UN Secretary General Report, A/HRC/18/20, para 61, 4 July 2011.

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In this context, the EU will continue working closely with civil society and support its

essential role of reporting, raising awareness and calling for action

The EU also notes important actions being undertaken by other stakeholders including

the International Commission Against the Death Penalty as well as initiatives by

Parliaments.

iv. At the October 1997 Council of Europe Summit, Heads of Government, including all

EU Member States, called for universal abolition of the death penalty. Moreover, new

states to the Council of Europe have committed themselves to moratoria and to ratify

the 6th Protocol of the European Convention on Human Rights (ECHR) committing

them to permanent abolition. The 6

Protocol has been ratified by all EU Member

States. The 13

Protocol of the ECHR, which has been signed by all EU Member States

and entered into force on 1 July 2003, commits the member states concerned to

permanent abolition of the death penalty in all circumstances.

The Committee of Ministers of the Council of Europe decided in September 2007 to

declare a “European Day against the Death Penalty” which is to be marked each year on

10 October to coincide with the World Day Against the Death Penalty. In December

2007, this European Day was also declared by the European Union.

v. Article 2 of the EU Charter of Fundamental Rights, which became legally binding by

virtue of the Treaty of Lisbon on 1 December 2009, provides that no one shall be

condemned to the death penalty, or executed. Its Article 3 states that everyone has the

right to respect for his or her physical and mental integrity. Its Article 4 prohibits

torture, inhuman or degrading treatment or punishment and Article 19(2) states that no

one may be removed, expelled or extradited to a State where there is a serious risk that

he or she would be subjected to the death penalty, torture or other inhuman or degrading

treatment or punishment.

Article 19(2) is implemented in practice by the inclusion of clauses allowing for the refusal of cooperation in

agreements between the EU and third countries on cooperation in criminal matters. Examples include the

agreement between the EU and the USA on extradition, 25 June 2003 (article 13 refuses extradition in case of

risk of death penalty); Agreement between the EU and the USA on mutual legal assistance in criminal matters,

14 July 2004.; and Agreement between the EU and Japan on mutual legal assistance on Criminal matters, 30

November 2009 (art. 11)

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All European Union Member States are fully committed to these provisions and

implement them in practice. Abolition is also a precondition for candidate countries

seeking accession to the EU.

vi. In the Organisation for Security and Cooperation in Europe (OSCE), participating States

are committed under the Copenhagen document to exchange information on the

abolition of the death penalty and to make this available to the public. The EU fulfils

this by regular statements within the OSCE's Human Dimension framework. In 2009

and 2010, the OSCE adopted resolutions on the death penalty

vii. The Rome Statute of the International Criminal Court as well as the statutes of the other

ad hoc international and hybrid criminal tribunals,

all of which the EU supported,

contain no provision imposing the death penalty, notwithstanding the fact that they were

set up to deal with mass violations of humanitarian law including genocide.

viii. The EU monitors closely and encourages measures and initiatives taken by other

regional organisations inter alia the African Union and the Organisation of American

States, who work towards the abolition of the death penalty.

ix. The EU will keep these Guidelines under regular review and would envisage conducting

such a review every three years, if necessary.

Resolution on a moratorium on the death penalty and towards its abolition, adopted by the General Committee

on Democracy, Human Rights and Humanitarian Questions of the OSCE Parliamentary Assembly in Vilnius at

the Eighteenth Annual Session on 1 July 2009 and Resolution on the Death Penalty adopted by the General

Committee on Democracy, Human Rights and Humanitarian Questions of the OSCE Parliamentary Assembly in

Oslo at the Nineteenth Annual Session on 6 July 2010.

ICTY. ICTR, SCSL, STL, ECCC.

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II. OPERATIONAL PAPER

The EU considers that the death penalty constitutes serious violation of human rights and human

dignity. Encouraged by the growing momentum towards abolition of the death penalty worldwide,

the EU will continue its long-standing campaign against the death penalty.

The abolition of capital punishment contributes to the progressive development of human rights.

Capital punishment is inhumane and unnecessary. No compelling evidence exists to show that the

death penalty serves as a deterrent to crime. Furthermore, any miscarriage of justice could lead to

the intentional killing of an innocent person by state authorities.

The objectives of the European Union are:

- To work towards universal abolition of the death penalty as a strongly held policy agreed by

all EU Member States

- Where the death penalty still exists, the EU will,

o Advocate the immediate establishment of a moratorium on the use of the death penalty

with a view to abolition.

o call for its use to be progressively restricted, including by reductions in the number of

offences for which the death penalty will be implemented,

o advocate that it be applied respecting the minimum standards as set out in these

Guidelines

o seek accurate information about the use of the death penalty including the offence it is

used for, the number of persons sentenced to death, the number of executions actually

carried out, the number of persons under sentence of death, the number of death

sentences reversed or commuted on appeal and the number of instances in which

clemency has been granted, and to include information on the extent to which the

minimum standards are incorporated in national law;

o where appropriate, seek disaggregated data on the nationality, sex, age, racial or ethnic

origin, religion or belief, sexual orientation and other status, including disability, of

persons executed or facing the death penalty.

Language of the EU Strategic Framework Framework and Action Plan on Human Rights and Democracy

Luxembourg, 25 June 2012, 11855/12.

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These objectives form an integral part of the EU’s human rights policy and many are explicitly

defined actions under the EU's Action Plan for Human Rights and Democracy.

In 2005 the EU, exercising its trade policy powers, adopted a Regulation prohibiting trade in goods

which have no practical use other than for the purpose of capital punishment or for torture and ill-

treatment as well as the supply of technical assistance related to such goods. The Regulation also

makes provision for export controls on certain goods which could be used for such purposes.

Responding to developments as regards capital punishment, the list of controlled goods was

amended in December 2011. As a result, export controls are now applied to short and intermediate

acting barbiturate anaesthetic agents, which could be used for the execution of human beings by

means of lethal injection. Furthermore, the Regulation is being reviewed to assess whether

additional measures might be necessary to ensure that EU economic operators refrain from trade

which either promotes or otherwise facilitates capital punishment in foreign countries.

The European Union will continue to intensify its initiatives, including declarations or demarches

on the death penalty, in international fora and towards other countries, in the light of the attached

Minimum Standards Paper.

The European Union will consider, case by case, and on the basis of relevant criteria, whether to

make demarches i.e. to privately make formal diplomatic representations of the EU’s official

position, or to make public statements addressed to other countries on the use of the death penalty.

The main elements of the EU approach will be as follows:

EU Strategic Framework and Action Plan on Human Rights and Democracy, Luxembourg, 25 June 2012,

11855/12.

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GENERAL DEMARCHES

Where relevant, the European Union will raise the issue of the death penalty in its dialogues and

consultations with third countries. Elements in these contacts will include:

- The EU's call for universal abolition of the death penalty, or at least for a moratorium with a

view to abolition.

- Where its use is maintained, the EU will emphasise that states should only use the death

penalty in line with the minimum standards as set out in the attached paper, based on the

provisions contained in international human rights law and other international standards, and

they should maintain maximum transparency, including through publishing accurate

information about the death penalty and its use.

The precise nature of such approaches will take into consideration, inter alia:

- Whether the country has an independent and efficient judicial system guaranteeing a fair trial

to any accused person;

- Whether the country has made international undertakings not to use the death penalty ;

- Whether the legal system of the country, and its use of the death penalty, is closed to public

and international scrutiny;

- And whether there are indications that the death penalty is widely used in contravention of the

minimum standards.

Particular consideration will be given to making EU demarches on the use of the death penalty at

times at which 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 to be ended, or where the death penalty is to be reintroduced or

expanded through legislation.

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Particular consideration will be given to reports and findings by relevant international human rights

mechanisms.

A demarche or public statement should be made where countries take steps towards abolition of the

death penalty.

INDIVIDUAL CASES

In addition, where the European Union becomes aware of individual death penalty cases, in

particular those which violate the minimum standards, the EU will consider making specific

demarches. Actions will be considered on a case by case basis and interventions in legal

proceedings (as amicus curiae, or otherwise) may be considered where appropriate and legally

permissible.

Speed will often be essential in these cases. Member States proposing such demarches should

therefore provide as much background as possible drawing on all available sources. This should

include brief details of the alleged crime, criminal proceedings, the precise nature of the violation of

the minimum standards, the status of any appeal and, if known, the expected date of execution.

Where there is sufficient time consideration should be given to seeking, from Heads of Mission,

detailed information and advice on the case prior to demarches being made.

The present guidelines may productively be read in conjunction with the other EU Human Rights

Guidelines, in particular the Guidelines to EU Policy towards Third Countries on Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, the EU Guidelines on Human Rights

Defenders.

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HUMAN RIGHTS REPORTING

EU Heads of Mission should include an analysis of the application and use of the death penalty and

the effect of EU action in this respect in their human rights reporting, including in the human rights

strategies.

POSSIBLE RESULTS OF EU INTERVENTIONS: OTHER INITIATIVES

The EU will encourage countries to accede to, or ratify, the Second Optional Protocol to the ICCPR

and comparable regional instruments. It will also support the development of such regional

instruments where they do not exist.

In pursuit of its aim of abolition, the EU will also:

- Encourage states to ratify, without reservations, and comply with International instruments on

the use of the death penalty, including the ICCPR;

- Encourage and offer bilateral and multilateral cooperation, inter alia in collaboration with

civil society, including in the legal field with the aim to enhance the right to a fair and

impartial trial for criminal cases and to create greater transparency around the use of the death

penalty.

- Through the European Instrument for Democracy and Human Rights (EIDHR) the EU will

continue to support civil society in its actions promoting the abolition, the establishment of

moratoria and restrictions on the use of the death penalty. The EU remains the main donor in

this area.

- Ensure that the actions, such as legal, financial or other technical assistance to third countries

do not contribute to the use of the death penalty.

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ACTION IN MULTILATERAL FORA

The EU will raise the issue of the death penalty in relevant multilateral fora and seize all

appropriate opportunities to put before them initiatives aimed at introducing a moratorium on the

use of the death penalty and, in due course, abolition. Whenever appropriate, the EU will seek to

include references to the establishment of a moratorium on executions and the abolition of the death

penalty in documents produced under the proceedings of these multilateral fora. This includes

appropriate recommendations by Member States as part of the Universal Periodic Review Process

(UPR) of the UN Human Rights Council. The EU will also cooperate with requests from UN bodies

for information on consultation reports, and will encourage its Member States to do likewise.

The EU will encourage relevant international and regional organisations to support states to take

appropriate steps to comply with minimum standards relating to the death penalty, and further

encourage them to ratify, without reservations, and comply with international treaties relating to the

death penalty.

III. MINIMUM STANDARDS PAPER

While continuing to state its strong opposition to the death penalty and advocate for its full

abolition, the EU shall insist that those countries that still maintain executions respect the following

minimum standards:

i) The death penalty must not be imposed for non-violent acts such as financial or economic

crimes, or because of political offences or rivalries. It shall also not be imposed for drug-

related crimes, religious practices or expression of conscience, or for sexual relations between

consenting adults, it also being understood that scope should never go beyond the most

serious intentional crimes.

ii) Capital punishment must never be provided for in law as a mandatory sentence.

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iii) Capital punishment shall not be imposed for a crime for which the death penalty was not

prescribed at the time of its commission, it being understood that if, subsequent to the

commission of the crime, provision is made by law for the imposition of a lighter penalty, the

offender shall benefit thereby.

iv) Capital punishment shall not be imposed on:

Persons below 18 years of age at the time of the commission of their crime;

Pregnant women, new mothers and nursing women;

Persons suffering from any mental illness or having an intellectual disability

The elderly.

v) Capital punishment shall not be imposed if the guilt of the person charged is not based upon

clear and convincing evidence, leaving room for alternative explanation of the facts. In this

respect, the use of torture to extract guilty pleas shall be strictly prohibited.

vi) A final judgement rendered by an independent and impartial competent court after legal

proceedings, including those before special tribunals or jurisdictions, which gives all possible

safeguards to ensure a fair trial, at least equal to those contained in Article 14 of the

International Covenant on Civil and Political Rights, including the right of anyone suspected

of or charged with a crime for which capital punishment may be imposed to adequate legal

assistance at all stages of the proceedings shall be necessary.

vii) When considering whether legal proceedings provide all possible safeguards to ensure a fair

trial, due attention shall be given to whether anyone suspected of or charged with a crime for

which capital punishment may be imposed has been informed of the right to contact a

consular representative.

Of particular relevance are Article 14's provisions to the effect that a person has a right to legal assistance

without payment by him/her in any such case if s/he does not have sufficient means to pay for it and where

necessary, the right to have the free assistance of an interpreter.

Vienna Convention on Consular Relations 63, article 36.1.

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viii) Military tribunals may not impose death sentences on civilians under any circumstances.

ix) Anyone sentenced to death shall have an effective right to appeal to a court of higher

jurisdiction.

x) Where applicable, anyone sentenced to death shall have the right to submit an Individual

complaint under international or regional procedures; the death sentence will not be carried

out while the complaint remains under consideration under those procedures; the death

penalty will not be carried out as long as any related legal or formal procedure, at the

international, regional or national level, is pending.

xi) Anyone sentenced to death shall have the right to seek pardon or commutation of the

sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all

cases of capital punishment; the death sentence will not be carried out while such applications

remain under consideration under relevant procedures in a state.

xii) Capital punishment may not be carried out in contravention of a state's international

commitments.

xiii) Consideration shall be given to the length of time spent on death row and the conditions of

imprisonment after having been sentenced to death, bearing in mind that the conditions of

imprisonment of persons on death row should not be inferior to that of other inmates. These

elements may constitute forms of torture or inhumane or degrading treatment or punishment

UN Sub-Commission on the promotion and protection of human rights Resolution 2004/25 on the Imposition of

the Death Penalty on Civilians by Military Tribunals; Working Group on Arbitrary Detention, UN Doc.

E/CN.4/1999/63, para.80; Report of the Special Rapporteur on Extra Judicial Executions August 2012, paras.33

and 121.

The EU as well as the UN and the European Court of Human Rights have given legitimacy to the death row

phenomenon (see the EU Guidelines on Torture and Other Cruel Treatment, the Interim Report of the Special

Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/67/279, 9 August 2012

and Soering v UK (1989) 11 EHRR 439).

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xiv) Where capital punishment occurs notwithstanding the EU's best efforts to prevent it, it shall

only be carried out so as to inflict the minimum possible suffering. It may not be carried out in

public or in any other manner intended to further degrade the person facing execution.

Equally, it must not be practised in secrecy.

The family and lawyers of prisoners on death

row must be notified of details of their execution.

xv) The death penalty must not be applied or used in a discriminatory manner on any ground

including political affiliation, sex, racial or ethnic origin, religion or belief, disability, age or

sexual orientation.

_________________________

2010 SG report to the UNGA (A/65/280): para: 72

The Human Rights Committee has found that the failure to notify the family and lawyers of the prisoners on

death row of their execution is incompatible with articles 7 and 10, paragraph 1, of the ICCPR: Concluding

observations of the Human Rights Committee: Japan, UN document CCPR/C/79/Add.102, 19 November 1998,

para. 21