ABSTRACT: Document on the death penalty prepared for the 36th Congress of the Radical Party (Rome, Hotel Ergife, 30 April - 3 May)

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In spite of the fact that the right to life is formally proclaimed in all international human rights agreements, starting with the World Declaration of Human Rights of 10 December 1948, and even though it is a "primordial" right and, therefore, essential to the enjoyment of all other human rights, the above-mentioned agreements do not manifest - and have not since 1980 - a tendency to favour the abolition of the death penalty.

For example, the European Agreement for the Protection of Human Rights, signed in Rome on 4 November, 1950, after declaring that every individual's right to life is protected by law goes on to state that no one can be deprived of their life deliberately, except by carrying out a sentence pronounced by a Court of Law, in those instances where the crime in question is punishable under a law that provides for the death penalty (art. 2). The Civil and Political Rights Agreement, adopted by the General Assemply of the UN on 16 December 1966, and the American Human Rights Agreement of San José de Costa Rica of 22 November 1969, both provide for the death penalty in the law pertaining to the right to life, in which it is specified as a permitted exception to this same right to life.

On the other hand, the above Agreements tend to limit the application of the death penalty, and impose a series of conditions on its being applied which act as a guarantee to the individual. Both the Civil and Political Rights Agreement of 1966 and the American Human Rights Agreement of 1969 declare that the death penalty can only be applied for the most serious crimes. In spite of the fact that these agreements are intended to reduce the application of the death penalty to a minimum, it has to be said that there is a tendency to generalize and the laws can, therefore, be interpreted differently by the various countries; for example, an authoritarian country could consider political dissent to be one of the most serious crimes, and act accordingly. A condition imposed by the 1966 Agreement is perhaps more effective, as it states that the death sentence cannot be pronounced in those instances where it is not provided for in the Agreement itself. This excludes all possibility of capital punishment being a

dministered in cases which involve the exercising of an individual's rights, such as freedom of thought, religious freedom, etc., and also bans all types of execution which might be considered cruel, inhuman or degrading.

In the various human rights agreements it is also stipulated that the death penalty can only be comminated by a death sentence (with the individual's rights being guaranteed a fair trial), and in accordance with the law which provided for this type of punishment at the moment the crime was committed (nullum crimen, nulla poena sine lege).

The death penalty cannot be applied in the case of crimes committed by minors who are under eighteen (art. 6 of the Civil and Political Rights Agreement, art 4. of the American Human Rights Agreement and, more recently, art. 37 of the New York Agreement of 26 January 1990 regarding the rights of minors).

As far as pregnant women are concerned, it would seem that only the actual execution is forbidden, and that it would therefore be perfectly legal to execute a woman after she has given birth! Further restrictions are imposed by the American Agreement of 1969 (over 70s, political crimes, etc.), which also stipulates that if a state has already abolished the death penalty it can never be reinstated.

At the beginning of the 80s, there was a tendency to abolish capital punishment, even though it can still be applied in certain cases. At a European level, we must remember that Protocol no. 6, which concerns the death penalty, was adopted as part of the European Human Rights Agreement on 28 April 1983, and came into force in 1985 (while a similar Protocol was adopted as part of the American Human Rights Agreement on 8 June 1990.). Art. 1 of said Protocol states, with great immediacy and in no uncertain terms, that the death penalty has been abolished, and that no individual can be condemned to death or executed. There is, neverthless, a provision for the death penalty in the case of criminal acts committed in wartime, or when war is imminent (art. 2). This exception, which is provided for in the laws of a country that has already abolished the death penalty, is made in consideration of the vulnerability of the state during wartime (or immediately before a war), which makes it necessary to strengthen a

country's defences. Furthermore, it must be noted that, in the case of imminent war, a margin of uncertainty exists in the specification of the degree of danger, which could be used as a pretext for the abuse of certain provisions in the Protocol by those countries which have signed it.

As far as the UN is concerned, the death penalty has been abolished with the optional second Protocol adopted as part of the Civic and Political Rights Agreement on 15 December 1989 in New York, which came into force on 11 July 1991. This Protocol stipulates that each country that has signed it must adopt all the measures necessary to abolish the death penalty, and specifies that no person subject to the laws of the country in question can be executed. If the obligation of applying the death penalty seems "programmatic", in that it requests the country in question to adopt certain measures to achieve this end, the banning of executions is, in itself, preceptive.

This Protocol also provides for the death penalty, but only under exceptional circumstances, and in an extremely limited number of cases, and it also imposes a whole series of conditions that have to be met. In fact, the death penalty can only be applied in wartime, in the case of an extremely serious military crime committed during the war. In order to eliminate any uncertainty as to the duration of the war, the countries which have signed the Protocol are bound to communicate, to the Secretary General of the UN, the precise day on which war was declared in their territory, and the day on which it ended (as well as being obliged to communicate the provisions made by laws applicable in wartime).

The Protocol of 1989 constitutes an important step towards the abolition of the death penalty, also as regards Protocol no. 6 of the European Human Rights Agreement, in that it is characterized - as we have seen- by a stricter reduction of the exceptional circumstances in which the death penalty can be applied. This progress is, however, diminished by the fact that the Protocol of 1989 was approved by the General Assembly of the UN with a minority vote. In fact, only 59 countries voted in favour of it while 26 voted against, with 48 absentions. The majority of countries, therefore, were choosing not to become involved.

This demonstrates that the international community, as a whole, is still a long way from assuming an abolitionist position; and this, in truth, does not come as a surprise, when one considers that there is certainly not an abolitionist majority amongst the voting public in each country and the "people's conscience" seems to show a greater tendency to favour the reinstatement of the death penalty even in countries, like ours, where it has already been abolished. The uncertainties and the difficulties that delay the abolition of the death penalty, both at an internal and international level, must act as inspiration for a renewed commitment, so that we might replace the morbid logic of death by cultivating life. Life understood as an absolute and irrevocable right which cannot be sacxrificed, not even in the name of justice, or the protection of society.