Subject: CAPITAL PUNISHMENT (GERMANY)
X-Listprocessor-Version: 6.0 -- ListProcessor by Anastasios Kotsikonas
X-Comment: The Transnational Radical Party List
New York, 21 November 1994
Forty-ninth Session of the General Assembly Third Committee Agenda Item 100
e): Capital Punishment
Statement by the Representative of Germany
Mr. Christian Much
on behalf of the European Union and Austria
Mr. Chairman,
I have the honour to take the floor on behalf of the European Union
and Austria on sub-item 100 e), entitled "Capital Punishment"
Various human rights instruments and decisions of the United Nations,
notably the International Covenant on Civil and Political Rights, the
Convention on the rights of the Child and ECHOES resolution 1984/50,
establish certain restrictive standards in the field of capital punishment.
In addition, the Sercond Optional Protocol to the International Covenant on
Civil and Political Rights offers States the possibility of committing
themselves to the abolition of the death penalty. Ratification of and
accession to international human rights treaties and protocols, with the
aim of their universal acceptance, is encouraged by virtue of the decisions
of the World Conference on Human Rights. But we are aware that in a matter
as serious as the one in front of us, a thorough debate is necessary.
As our contribution to the ongoing process of reflection that the
European Union would like to promote, let me lay out a few points:
The states belonging to the European Union do not apply the death
penalty. There are 90 states around the world that choose either to
abolish., or to heavily restrict the death penalty. Among them, 54 States
have abolished the death penalty for all offences. 21 States can be
considered as de facto abolitionist for not having carried out the death
penalty for at least 10 years, although it is still retained in their
legislation. 15 States have abolished the death penalty for all ordinary
offences, reserving capital punishment only for exceptional crimes such as
wartime acts.
On the other hand, a large number of states carry out the death
penalty.
It is argued that the death penalty has a deterring affect on
criminals and thus contributes to the prevention of crime.
But it is also argued that the death penalty is warranted by the
concept of retribution.
But many states, including our own countries, see the purpose of
punishment as not, first of all, to exact retribution but, where possible,
to resocialize. Justice Krishna Iyer of the Supreme Court of India
explained this concept in the following words: "Murder is man plus murder.
Real Justice is done when the judge punishes the murder and restores the
man."
Mention should be made of Coretta Scott King who said, confronted with
the murder of her husband, the civil rights leader Martin Luther King: "I
stand yet firmly opposed to the death penalty. An evil deed is not redeemed
by an evil deed of retaliation. Justice is never advanced in the taking of
human life."
The fundamental questions about life and death and about the role of
the human being in understanding these concepts are questions that
humankind has been pondering throughout its history. In the European Union,
our understanding of these questions is as limited as anybody else's.
The approach that the United Nations are giving to the issue of the
death penalty seems equally characterized by concern about human
fallibility. The law. be it divine or man-made, is carried out by human
beings who, as history has so amply and painfully shown, are prone to err
and to fail. Uncertainties in criminal justice systems may lead to tragic
and irreversible errors of judgement, rendering the redress of mistakes
impossible.
Marquis de Lafayette said: "I shall ask for the abolition of the death
penalty until I have the infallibility of human judgement demonstrated to
me."
Under these circumstances, the United Nations advocate three
Principles:
the defence of the right to life, as expressed in Article 3 of the
Universal Declaration on Human Rights and in Article 6 of the International
Covenant on Civil and Political Rights which refers to the abolition of the
death penalty in terms that suggest that abolition is desirable;
the call for restrictions in the application of the death penalty,
limiting it to most serious crimes and exempting persons under the age of
18, pregnant women, new mothers and insane persons from its application.
This is expressed in Article 6 para 2 of the International Covenant on
Civil and Political Rights, in Article 37 para (a) of the Convention on
Rights of the Child and in ECHOES resolution 1984/50;
the establishment of safeguards, notably in Article 6 of the
International Covenant on Civil and Political Rights and in ECOSSOC
resolution 1984/50 and annex attached to it.
The European Union welcomes the framework established by these
documents and urges their full implementation by all States concerned. It
strongly urges the tenet that capital punishment, where it is applied,
should be limited to the most serious crimes, should exempt the persons
specified in the above-mentioned documents and should only be imposed for
crimes that were subject by law to the death penalty at the time of
commission. The European Union is also concerned about circumstances where
the death penalty is applied in a generalized way, or based on political,
racial, religious, gender or other bias, or as a form of revenge.
Furthermore, The European Union attaches great importance to the observance
of the established safeguards, in particular the right to due process,
including the right to effective legal assistance and to a public procedure
before the competent court, obeying to the rules of fair trial, the right
to appeal to a court of higher jurisdiction and the right to seek pardon or
commutation of the sentence.
Against this background, the European Union urges all states
concerned, in keeping with the decisions of the Vienna World Conference on
Human Rights, to consider ratifying or acceding to the pertinent human
rights instruments. Also, the European Union urges all States to review any
reservations contrary to these instruments, with a view to withdrawing them
With regard to the draft resolution contained in document A/49/234, we
understand that its main purpose is to promote further reflection on the
highly complex and delicate question of capital punishment. The resolution,
when adopted, would not impose new standards. The text rather summarizes
existing standards and presents us with the challenge of confronting them.
It looks ahead, starting from the present status quo. In this spirit, its
op 4 suggests that, while looking ahead, the status quo of persons
currently on death-row should be preserved.
In appreciation of these considerations we hope that Member States
will contribute, also by the position they will adopt on the draft
resolution, to a constructive and positive debate on this issue.
