Love or Loathe the EU, the Lisbon Treaty does not require the death penalty


A meme appears to be spreading at the moment that the Lisbon Treaty requires the reintroduction of the death penalty. Those who have read my other posts on the EU will see that I am not its greatest supporter. However, the claim about the death penalty is simply factually incorrect.

The genesis of the meme resurfacing now seems to be from the campaign being started by http://order-order.com/ to seek the reintroduction of the death penalty for offences such as child murders and other particularly horrendous crimes. Some, have then taken the strange step of arguing that those who oppose the death penalty in the context of that campaign must also, therefore, oppose continued membership of the EU because the Lisbon Treaty (also known as the TFEU) requires the introduction of the death penalty.

Although this (http://euro-med.dk/?p=948 ) is one of the sites that provides the basis for the meme and the quotes from the relevant parts of the TFEU are accurate, it is just the interpretation there which is the opposite of correct.

Put simply, Article 6(1) TFEU incorporates the EU Charter of Fundamental Rights into the body of EU law. The EU Charter itself incorporates the European Convention on Human Rights (ECHR) into itself. Article 2(2) ECHR states that it is not a breach of the right to life if death results from State action using non-excessive force defending someone from unlawful violence, making a lawful arrest or preventing escape from it, or in taking lawful action to quell civil unrest. The case-law arising from the SAS shootings of IRA members in Gibraltar (http://bit.ly/rk25un ) established that this did not mandate the use of the death penalty but prevented the State being in breach of the ECHR when it was taking lawful law enforcement action. In that case had it been the case that the intention had been to execute the alleged terrorists the decision would have been likely to have been that this did breach the right to life.

Article 2 of Protocol 6 to the ECHR also provides that the death penalty may be included by a State that is party to the ECHR only in relation to offences committed in time of war or on immediate danger of war.

So, in total, the TFEU incorporates Art 2(2) of the ECHR which says that there are instances where State action resulting in death is not a breach of the right to life and Art 2 Protocol 6 which allows signatory States to have the death penalty for offences related to war.

Nowhere on the face of the Treaties and Conventions, nor in the caselaw, is there a provision to say that all Member States of the EU must introduce the death penalty for civil insurrection or during times of war. At its highest, the TFEU provides that a Member State may have the death penalty for crimes in war time.

It is not particularly surprising that it does this – remember that the ECHR dates from 1950, not so many years after the Nuremburg War Trials. Making it a breach of the nascent human rights laws for Germany for instance, to be able to provide the death penalty for Nazi war criminals would have looked very odd when this was something which had been seen as the right punishment so very recently.

The anti-EU point is also a peculiar one as the ECHR and both of the ECHR provisions discussed above are both already incorporated into English law by the Human Rights Act 1998. The real anti-EU point is not, I believe, that the TFEU requires the introduction of the death penalty but that it is a piece of law, superior to domestic UK legislation while the UK remains an EU member, which prohibits the legislative introduction of the death penalty for any other reason.

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