The Right to Life and Abolition of the Death Penalty in the Council of Europe

Abstract

This article investigates the prima facie paradox of the endorsement of the death penalty in Art.2(1) of the European Convention of Human Rights, with the “abolition” of the punishment provided by Protocol No.6 and Protocol No.13. It will analyse the evolution of the Council of Europe’s abolitionist discourse which led to this juxtaposition, and identify whether there are unified or heterogeneous approaches to the punishment by the Committee of Ministers, the Parliamentary Assembly, and the judicial organs of the Commission and Court. What emerges is a conflict between the radical expansion of the boundaries of human rights by the Assembly, with the Committee’s demonstration that the shadow of state sovereignty constantly attempts to thwart the progress. Consequently, the Court has bowed to the need for Member State acceptance of provisions for amendment of Art.2(1) and has not applied any purposive application of the “living instrument” doctrine. However, the gradual solidification of the Council’s abolitionist position has produced the possibility of legislative abolition through the Protocols, but the text of Art.2(1) remains. So is the death penalty abolished or not? As contemporary practice within Member States affirms that it is, is textual amendment now a moot issue?