PENALTY

the resulting embarrassment is also likely to discourage the practice.
It will become increasingly difficult to execute someone in a manner
agreed to be humane. Hanging, shooting by firing squad, electrocution,
asphyxiation and lethal injection have all in one way or another
become discredited or at least seriously questioned. But what are
the alternatives?
There seems to be a growing disbelief in the myth of deterrence.
In spite of all the opposition to the death penalty and the increased
availability of crime data, the deterrent effect of capital punishment
has not been proven. And the onus is on those who want to limit the
right to life to justify that limitation. Those relying on deterrence
alone to justify the death penalty need to address the fact that to
obtain its maximum possible deterrent effect, it would have to be
mandatory, or at least highly probable, and therefore used on a substantial
scale across most categories of homicide—which is not an
option for democratic states bound by the rule of law and concern
for human rights. 18
There is increasing support for the view that the death penalty violates
the prohibition of torture and cruel, inhuman and degrading
treatment or punishment. The normative perspective has shifted:
While traditionally, the death penalty was the norm, now abolition
is the norm. The onus is on those states that want to retain the death
penalty to justify their position. The increasing number of states that
have either abolished the death penalty, ceased to practice it or revised
the law to restrict its scope—often in the context of engagements
with international human rights bodies—presents a clear pattern.
This trend increases the weight of the claim that international law
requires the gradual abolition of the death penalty.
THE IMPORTANCE OF REGIONAL INITIATIVES
Regional human rights systems play an important role in the protection
of the right to life, including with respect to the death penalty.
The system is a holistic unit, with each component playing a vital role.
Regional systems are in many cases closer to the people concerned
18 For a general discussion of deterrence, see Roger Hood and Carolyn Hoyle, The Death Penalty:
A Worldwide Perspective, 5th ed. (New York, Oxford University Press, 2015), chapter 9.
than the global system and, as such, are able to facilitate greater participation
in the international system and to foster its legitimacy. 19
The Council of Europe is the only regional human rights mechanism
to have achieved universal abolition in practice, through its Protocol
6 (1983) and Protocol 13 (2002). Three Council of Europe member
states, (Armenia, Azerbaijan and Poland) have abolished the death
penalty but not ratified Protocol 13. Russia has not abolished the
death penalty in law, but it has not applied it since 1999 following
a moratorium decision by its Constitutional Court. 20 In continuing
this moratorium and trying to move towards abolition, the Court has
highlighted that invitation into the Council of Europe occurred in
part because of its expressed intention to establish a moratorium and
take steps towards abolition. 21
Significantly, from the perspective of the progressive-abolition argument
advanced above, the European Court of Human Rights argued
in 2010 that the protocols, combined with state practice across the
region, “are strongly indicative that article 2 has been amended so
as to prohibit the death penalty in all circumstances.” 22 In July 2014,
the Court held that “the fact that imposition and use of the death
penalty negates fundamental human rights has been recognised by
the member States of the Council of Europe.” 23 This represents the
moment of realisation for a process of progressive abolition, whereby
the death penalty is declared to be a violation of the European Convention
despite the explicit wording adopted 60 years earlier.
Article 2(1) of the European Union Fundamental Rights Charter,
which is part of the European Union Treaty, states that “everyone has
the right to life.” According to Article 2(2), the death penalty may not
be imposed or executed. Formal abolition of the death penalty is a
condition of entry into the European Union. It is also a central plank
of the human rights component of its foreign and security policy.
19 See Christof Heyns, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions
(6 August 2014) [A/69/265].
20 Constitutional Court of the Russian Federation, Decision No. 3-P/1999 (2 February 1999).
21 Constitutional Court of the Russian Federation, Decision No. 1344-O-R/2009 (19 November
2009).
22 European Court of Human Rights, Al-Sadoon and Mufdhi v. UK, [no. 61498/08], 2 March 2010,
paragraph 120.
23 European Court of Human Rights, Al Nashiri v. Poland, [no. 28761/11], 24 July 2014, paragraph 577.
222 223