EU-Charter of Fundamental Rights and death penalty

Scofflaw

Let's try to clear up this particular piece of misinformation. The Charter or Fundamental Rights (COFR) is a copy of the European Convention on Human Rights (ECHR).

The COFR contains a 'right to life' article exactly as the ECHR does. The ECHR also contains two Protocols - 6 and 13.

The ECHR 'right to life' article itself covers only the following for the acceding state:

1. a duty to refrain from unlawful killing,
2. a duty to investigate suspicious deaths and,
3. in certain circumstances, a positive duty to prevent foreseeable loss of life.

Note that the ECHR article itself does not rule out the use of the death penalty. Therefore, it is possible for a country to accede to the ECHR while retaining the death penalty, as Ireland did.

Protocol 6 of the ECHR requires the abolition of the death penalty except in times of war or imminent threat of war.

Protocol 13 of the ECHR requires the total abolition of the death penalty in all circumstances.

Ireland is a signatory to Protocol 13 (hence our making the death penalty unconstitutional in 2001), as is every other EU member state except Latvia. Every member state is a signatory to Protocol 6, and abolition of the civil death penalty is a pre-condition of EU membership - hence Turkey's abolition of it in 2003.

Now, the point that Latvia has not abolished the death penalty in time of war is what prevents the EU modelling the COFR 'right to life' on Protocol 13 - because the EU cannot sign up to something that either implicitly or explicitly restricts the rights of the member states. The COFR right, therefore, has to allow for Latvia's position.

That exemption for Latvia is not applicable in any other member state, because the other member states have acceded to Protocol 13 of the ECHR. If Lisbon is ratified, the EU will be able to accede to the ECHR - and once all member states have acceded to Protocol 13, the EU will also be able to accede to it.

All of that aside, to claim that the EU is in favour of, or in any sense promoting the death penalty, as opposed to being the single most important advocate of its abolition worldwide, is to act either in total ignorance or to lie with the most cynical of intentions.

cordially,
Scofflaw

Spiritoftheseventies

Scofflaw wrote: »

Let's try to clear up this particular piece of misinformation. The Charter or Fundamental Rights (COFR) is a copy of the European Convention on Human Rights (ECHR).

The COFR contains a 'right to life' article exactly as the ECHR does. The ECHR also contains two Protocols - 6 and 13.

The ECHR 'right to life' article itself covers only the following for the acceding state:

1. a duty to refrain from unlawful killing,
2. a duty to investigate suspicious deaths and,
3. in certain circumstances, a positive duty to prevent foreseeable loss of life.

Note that the ECHR article itself does not rule out the use of the death penalty. Therefore, it is possible for a country to accede to the ECHR while retaining the death penalty, as Ireland did.

Protocol 6 of the ECHR requires the abolition of the death penalty except in times of war or imminent threat of war.

Protocol 13 of the ECHR requires the total abolition of the death penalty in all circumstances.

Ireland is a signatory to Protocol 13 (hence our making the death penalty unconstitutional in 2001), as is every other EU member state except Latvia. Every member state is a signatory to Protocol 6, and abolition of the civil death penalty is a pre-condition of EU membership - hence Turkey's abolition of it in 2003.

Now, the point that Latvia has not abolished the death penalty in time of war is what prevents the EU modelling the COFR 'right to life' on Protocol 13 - because the EU cannot sign up to something that either implicitly or explicitly restricts the rights of the member states. The COFR right, therefore, has to allow for Latvia's position.

That exemption for Latvia is not applicable in any other member state, because the other member states have acceded to Protocol 13 of the ECHR. If Lisbon is ratified, the EU will be able to accede to the ECHR - and once all member states have acceded to Protocol 13, the EU will also be able to accede to it.

All of that aside, to claim that the EU is in favour of, or in any sense promoting the death penalty, as opposed to being the single most important advocate of its abolition worldwide, is to act either in total ignorance or to lie with the most cynical of intentions.

cordially,
Scofflaw

Sorry my intentions are no more cynical then those protesting about the rendition flights or the Shell to Sea Campaigners who have problems with Shell running pipes under their land. You were were doing fine until you put in that last line. shame. While I accept EU may have to deal with this issue to appease Latvia, that is not explained properly in the actual treaty itself.
If EU needs to deal with this outside the treaty fair enough but was once it comes within treaty we as Irish Citizens are whatever way you put it being asked to sign off on it. And as it is worded at the moment, I would have reservations about it.

marco_polo

bayviewclose wrote: »

Sorry my intentions are no more cynical then those protesting about the rendition flights or the Shell to Sea Campaigners who have problems with Shell running pipes under their land. You were were doing fine until you put in that last line. shame. While I accept EU may have to deal with this issue to appease Latvia, that is not explained properly in the actual treaty itself.
If EU needs to deal with this outside the treaty fair enough but was once it comes within treaty we as Irish Citizens are whatever way you put it being asked to sign off on it. And as it is worded at the moment, I would have reservations about it.

In light of the previous five pages what reservation do you still have?

Latvia may in theory adopt the Death Penalty in time of war, as they currently can. The EU cannot restrict their right to do so.

PopeBuckfastXVI

marco_polo wrote: »

In light of the previous five pages what reservation do you still have?

Latvia may in theory adopt the Death Penalty in time of war, as they currently can. The EU cannot restrict their right to do so.

It's a pity the EU can't, but then perhaps other countries also want their own provisions in Lisbon, imagine that!

ixtlan

bayviewclose wrote: »

If EU needs to deal with this outside the treaty fair enough but was once it comes within treaty we as Irish Citizens are whatever way you put it being asked to sign off on it. And as it is worded at the moment, I would have reservations about it.

It is dealt with outside the treaty.

Those clauses are in the European Convention on Human Rights document, not in the Lisbon treaty, and not in the EU Charter of Fundamental Rights.

Have you been concerned up to now about the ECHR?

And as Scofflaw says, those states signed up to protocl 13 of the ECHR do have an absolute ban.

Ix.

Spiritoftheseventies

ixtlan wrote: »

It is dealt with outside the treaty.

Those clauses are in the European Convention on Human Rights document, not in the Lisbon treaty, and not in the EU Charter of Fundamental Rights.

Have you been concerned up to now about the ECHR?

And as Scofflaw says, those states signed up to protocl 13 of the ECHR do have an absolute ban.

Ix.

Sorry need to confirm this. This Death Penalty provision in the charter. Does this provision need to be be ratified under Lisbon?

Scofflaw

bayviewclose wrote: »

Sorry need to confirm this. This Death Penalty provision in the charter. Does this provision need to be be ratified under Lisbon?

There is no death penalty provision in the Charter. I'm going to get seriously annoyed if you continue to peddle this FUD.

annoyed,
Scofflaw

marco_polo

bayviewclose wrote: »

Sorry need to confirm this. This Death Penalty provision in the charter. Does this provision need to be be ratified under Lisbon?

The provision to which you refer is in the European Convention on Human Rights, not the Charter of Fundamental rights which is what we are ratifying as part of Lisbon.

Spiritoftheseventies

Scofflaw wrote: »

There is no death penalty provision in the Charter. I'm going to get seriously annoyed if you continue to peddle this FUD.

annoyed,
Scofflaw

I know there is no provision per se. But it can be invoked by a member state in times of war or civil unrest. I have already quoted the text. It is "mentioned" in a footnote in the charter. Which i have quoted in a previous post.
Now I understand the reasons "why" they were put in as some countries had problems perhaps maintaining law and order and as such the provision would prove a deterrent. What am I asking are we being asked to sign off of that. Put simply. If we dont ratify this treaty does this footnote become redundant.

ixtlan

This is a useful document.

http://en.wikipedia.org/wiki/Territorial_scope_of_European_Convention_on_Human_Rights

I assume we have been signing up to this in pieces over the years. In 2002 (yes... so recently) we signed protocol 13, a total ban on the death penalty in all circumstances, after we changed our constitution by referendum.

This agreement is outside the EU, and is not affected by Lisbon.

Note that even we have not signed up to all of it yet.

Ix.

Scofflaw

bayviewclose wrote: »

I know there is no provision per se. But it can be invoked by a member state in times of war or civil unrest. I have already quoted the text. It is "mentioned" in a footnote in the charter. Which i have quoted in a previous post.
Now I understand the reasons "why" they were put in as some countries had problems perhaps maintaining law and order and as such the provision would prove a deterrent. What am I asking are we being asked to sign off of that. Put simply. If we dont ratify this treaty does this footnote become redundant.

No it CANNOT be invoked by a member state in times of war or civil unrest or at any other time!

The Charter does not permit EU member states to do anything they cannot already do - it is a set of proscriptions that limit what the EU can do. The only reason it's not a blanket prohibition on the use of the death penalty is to prevent the Charter conflicting with the current laws of Latvia.

The Charter cannot - I repeat cannot - be used by any member state to allow or justify the use of the death penalty under any circumstances. To claim otherwise indicates an almost total misunderstanding of law, the Charter, the EU, rights, and everything else even remotely connected with the claim - or it indicates dishonesty. And I don't for a minute think you're that ignorant.

Scofflaw

marco_polo

bayviewclose wrote: »

I know there is no provision per se. But it can be invoked by a member state in times of war or civil unrest. I have already quoted the text. It is "mentioned" in a footnote in the charter. Which i have quoted in a previous post.
Now I understand the reasons "why" they were put in as some countries had problems perhaps maintaining law and order and as such the provision would prove a deterrent. What am I asking are we being asked to sign off of that. Put simply. If we dont ratify this treaty does this footnote become redundant.

It is not a 'footnote' that can become redundant, it is a direct quotation from Protocol 6 of the ECHR, countries that have only signed up to this protocol will still be permitted to invoke the Death Penalty in times of war under international law. Countries which have also signed up to Protocol 13 do not have this option.

Lisbon not being ratified will not change which protocols of the ECHR countries have agreed to sign up to thus far.

Spiritoftheseventies

Scofflaw wrote: »

No it CANNOT be invoked by a member state in times of war or civil unrest or at any other time!

The Charter does not permit EU member states to do anything they cannot already do - it is a set of proscriptions that limit what the EU can do. The only reason it's not a blanket prohibition on the use of the death penalty is to prevent the Charter conflicting with the current laws of Latvia.

The Charter cannot - I repeat cannot - be used by any member state to allow or justify the use of the death penalty under any circumstances. To claim otherwise indicates an almost total misunderstanding of law, the Charter, the EU, rights, and everything else even remotely connected with the claim - or it indicates dishonesty. And I don't for a minute think you're that ignorant.

Scofflaw

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…’
Okay the very last par. Its pretty clear cut. Its part of the charter which is part of the treaty. By signing this does Article 2 of Protocol No 6 to the ECHR come into effect or not?

ixtlan

bayviewclose wrote: »

I know there is no provision per se. But it can be invoked by a member state in times of war or civil unrest. I have already quoted the text. It is "mentioned" in a footnote in the charter. Which i have quoted in a previous post.
Now I understand the reasons "why" they were put in as some countries had problems perhaps maintaining law and order and as such the provision would prove a deterrent. What am I asking are we being asked to sign off of that. Put simply. If we dont ratify this treaty does this footnote become redundant.

This is getting ridiculous. The footnote in the EU charter says it will be interpreted in accordance with the ECHR. For states that signed protocol 13 of the ECHR that means no death penalty ever, in any circumstances.

If we don't ratify Lisbon we are still signatories to the ECHR, where we signed protocl 13 and banned the death penalty in all circumstances.

If my previous wikipedia linked doc is correct many EU states have not signed protocol 13. Presumeably they want to keep the option open of such laws, even if they don't have them now.

To repeat... Lisbon changes nothing. Independent of the EU our signature on the ECHR bans the death penalty in Ireland in all circumstances. For other states if they have not signed protocol 13, it's up to them. Lisbon changes nothing.


Ix.

Spiritoftheseventies

to quote Scofflaw"
Now, the point that Latvia has not abolished the death penalty in time of war is what prevents the EU modelling the COFR 'right to life' on Protocol 13 - because the EU cannot sign up to something that either implicitly or explicitly restricts the rights of the member states. The COFR right, therefore, has to allow for Latvia's position. "
Why not apply QMV here in place of a veto which Latvia seems to have here.. Latvia is holding this Protocol 13 up. And yet a footnote is being put in seemingly here to appease them.

marco_polo

bayviewclose wrote: »

to quote Scofflaw"
Now, the point that Latvia has not abolished the death penalty in time of war is what prevents the EU modelling the COFR 'right to life' on Protocol 13 - because the EU cannot sign up to something that either implicitly or explicitly restricts the rights of the member states. The COFR right, therefore, has to allow for Latvia's position. "

Why not apply QMV here in place of a veto which Latvia seems to have here.. Latvia is holding this Protocol 13 up. And yet a footnote is being put in seemingly here to appease them.

Because you cannot apply QMV to treaty ratification? Or a veto for that matter. A country either ratifies a treaty or it does not. The EU cannot 'make' Latvia ratify anything.

Scofflaw

bayviewclose wrote: »

to quote Scofflaw"
Now, the point that Latvia has not abolished the death penalty in time of war is what prevents the EU modelling the COFR 'right to life' on Protocol 13 - because the EU cannot sign up to something that either implicitly or explicitly restricts the rights of the member states. The COFR right, therefore, has to allow for Latvia's position. "
Why not apply QMV here in place of a veto which Latvia seems to have here.. Latvia is holding this Protocol 13 up. And yet a footnote is being put in seemingly here to appease them.

This isn't a QMV matter, but a question of law. The right of EU member states to sign up for something like the ECHR is entirely separate from the EU, a point you seem not to understand.

Scofflaw

Spiritoftheseventies

marco_polo wrote: »

Because you cannot apply QMV to treaty ratification? Or a veto for that matter. A country either ratifies a treaty or it does not. The EU cannot 'make' Latvia ratify anything.

What I am saying is that Latvia would seem to have the veto here on the provision for the introduction of the Death Penalty.
So we can assume that when they were admitted to the EU, the EU would know they were probably a stumbling block to the total abolition of the Death Penalty. And they were still admitted. If their admittance was on the provision that it would give stability to the country can we assume that has not happened given the context of clause quoted on previous page.

ei.sdraob

bayviewclose wrote: »

What I am saying is that Latvia would seem to have the veto here on the provision for the introduction of the Death Penalty.
So we can assume that when they were admitted to the EU, the EU would know they were probably a stumbling block to the total abolition of the Death Penalty. And they were still admitted. If their admittance was on the provision that it would give stability to the country can we assume that has not happened given the context of clause quoted on previous page.

when was Latvia last in a war?

when was last time they executed someone as per the war clause?

i cant believe that you are still dragging this thread on and on, do you think your side has something to gain by bumping this up?

Spiritoftheseventies

ei.sdraob wrote: »

when was Latvia last in a war?

when was last time they executed someone as per the war clause?

i cant believe that you are still dragging this thread on and on, do you think your side has something to gain by bumping this up?

This has nothing at all to do with "my side". You do this a lot the time. portray all "No campaigners as making trouble for sake of it. How many no or undecided have posted here. This is just me needing some clarification. If they are not at war and have not executed some one since god knows when, get rid of the clause.
But yes this is dragging on.
Ill agree that the likelihood of this clause being actually invoked is highly unliked. i just don't like the fact that its there in the first place.

P. Breathnach

bayviewclose wrote: »

... Ill agree that the likelihood of this clause being actually invoked is highly unliked. i just don't like the fact that its there in the first place.

That's an issue that you should take up with Latvia, as it does not concern us.

marco_polo

bayviewclose wrote: »

What I am saying is that Latvia would seem to have the veto here on the provision for the introduction of the Death Penalty.
So we can assume that when they were admitted to the EU, the EU would know they were probably a stumbling block to the total abolition of the Death Penalty. And they were still admitted. If their admittance was on the provision that it would give stability to the country can we assume that has not happened given the context of clause quoted on previous page.

Latvia have not signed up for protocol 13 as of yet, because of this the EU cannot give protocol 13 a legal basis in the Charter of Fundamental Rights. This is basic international law.

It is not even as if Latvia was the first country ever to join the EU while still having such a provision on it books.

PopeBuckfastXVI

I'm not sure what's going on here.

I think there's some vague attempt to postulate that Lisbon means the EU approves of the death penalty.

For anyone in any doubt about the EU's stance on the death penalty:

http://www.europe.org.sg/en/eu_in_sg/death_penalty.htm

The European Union (EU) is opposed to the death penalty and has consistently espoused its universal abolition, continually working towards this goal. In line with the majority of international views, the EU considers that the abolition of the death penalty contributes to the enhancement of human dignity and the progressive development of human rights. The EU's position is rooted in its conviction in the inherent dignity of all human beings and the inviolability of the human person.

The abolition of the death penalty worldwide represents one of the main objectives of the EU's human rights policy. In countries that maintain the death penalty, the EU uses all of its available tools to work towards the progressive restriction of the scope under which capital punishment is used and towards respect for the strict conditions set forth in several international human rights instruments, under which the capital punishment may be used. The EU also seeks the establishment of a moratorium on executions so as to eliminate the death penalty completely

The EU agreed to establish a European day against the death penalty in 2007. The agreed date is the 10th of October each year, coinciding with world day against the death penalty which also takes place on the same date. The first European day against the death penalty is 10th October 2008.

Background on Latvia which has signed, but not yet ratified protocol 13.

http://www.legislationline.org/topics/country/19/topic/11

marco_polo

PopeBuckfastXVI wrote: »

I'm not sure what's going on here.

I think there's some vague attempt to postulate that Lisbon means the EU approves of the death penalty.

For anyone in any doubt about the EU's stance on the death penalty:

http://www.europe.org.sg/en/eu_in_sg/death_penalty.htm


Background on Latvia which has signed, but not yet ratified protocol 13.

http://www.legislationline.org/topics/country/19/topic/11

So they have agreed in principle to assent to protocol 13? Well that makes this thread even more pointless.

ixtlan

marco_polo wrote: »

So they have agreed in principle to assent to protocol 13? Well that makes this thread even more pointless.

It's not just Latvia who have signed but not ratified yet..

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/850

In the context of the Council of Europe, Protocol 6 to the European Convention on Human Rights (ECHR) unconditionally abolishes the death penalty in peacetime. All 27 European Union Member States have ratified Protocol 6. Protocol 13 to the same Convention prohibits the death penalty in all circumstances. Twenty two Member States have ratified Protocol 13; five Member States (France, Italy, Latvia, Poland and Spain) have signed but not yet ratified it.

The No side can't have it both ways (though they always want to). The EU does not force members to change until they want to.

This is not a Lisbon matter. It's an independent issue between each state, it's conscience, and the ECHR, with the EU as an organisation clearly hoping that each state will sign up to protocol 13.

Ix.

Scofflaw

bayviewclose wrote: »

This has nothing at all to do with "my side". You do this a lot the time. portray all "No campaigners as making trouble for sake of it. How many no or undecided have posted here. This is just me needing some clarification. If they are not at war and have not executed some one since god knows when, get rid of the clause.
But yes this is dragging on.
Ill agree that the likelihood of this clause being actually invoked is highly unliked. i just don't like the fact that its there in the first place.

It's not possible to "invoke" the footnote. It's only possible for someone to challenge a piece of EU legislation based on the prescriptive right in the text. The footnote is a guide to interpretation, and would mean that if at some point a piece of EU legislation could be regarded as giving effect to the death penalty, then it could be challenged under the right contained in the Article, but that the challenge would fail by virtue of the exemption if the legislation only gave effect to the death penalty in time of war.

The process is very simple:

1. what's in the text of the Article is the right itself. This is the only bit of text that can be evoked prescriptively - that is, to challenge legislation or otherwise to claim that one has "right x".

2. what's in the footnote is a guide to the interpretation of the right, including any limits of that right. The only time it becomes relevant is when the right has been invoked - the interpretation of the right cannot be invoked separately from the right at all.

It's like saying "you have the right to use the pool - except on Wednesdays".....you are doing the equivalent of going round shouting "aarg Wednesdays help help" without stopping to think whether it means anything at all. It doesn't.

regards,
Scofflaw