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Current Concerns  >  2009  >  No 17, September 2009  >  Say No to the EU Death Penalty [printversion]

Say No to the EU Death Penalty

The Lisbon Treaty Allows Death Penalty and Killing of People by the State.

An interview with Professor Karl Albrecht Schachtschneider

Oliver Janich, “Focus-Money”: Professor Schachtschneider, according to your lawsuit against the EU Treaty of Lisbon at the Bundesverfassungsgericht (The German Federal Constitutional Court), the treaty allows the reintroduction of the death penalty and the killing of humanes. This sounds outrageous. What is the base of your argument?
Professor Karl Albrecht Schachtschneider: The Charter of Fundamental Rights of the European Union, in its “explanations” and “negative definitions” accompanying the fundamental rights, allows a reintroduction of the death penalty in case of war or imminent war, but also the killing of humans to suppress insurgency or riot. This is in contradiction to the abolishment of the death penalty in Germany (Article 102 of the German Constitution), in Austria and elsewhere which results from the principle of dignity.

But does not the Charter prohibit capital punishment?
The relevant text for this is not article 2, clause 2 of the Charter which prohibits condemning people to death or executing them, but the explanation of this article which was incorporated into the treaty, originating from the European Convention Human Rights of 1950.
According to article 6, clause 3 of the EU Treaty in the Lisbon Version, the rights, freedoms and principles of the charter are interpreted according to the general provisions of chapter VII of the Charter which defines the interpretation and application of this Charter and under due consideration of the “explanations” listed in the Charter giving the sources of these provisions.

Why so long-winded?
Well, just to conceal this fact. The parliamentarians only get the text of the treaty which is difficult enough to understand and much too long.

But is it now unambiguous that the killing of people is allowed if the Treaty takes effect?
Yes, the Charter of Fundamental Rights was declared in Nice in 2000. But since it was not ratified by all countries, it was not binding under international law. If the Treaty takes effect, the Charter will become binding as well.

But this clause is only part of the explanations…
They are binding under article 52 clause 3 and 7 of the Charter of Fundamental Rights. You can read the corresponding explanation of the comment in the Official Journal of the European Union. There is no room for divergent interpretations. And: why should it be written there if it is not meant to be there?

But has not the German Constitutional Court rejected your interpretation by acknowledging the Lisbon Treaty?
Not at all. It has not commented on this question.

Is that the usual procedure?
It is actually the normal case. If the Constitutional Court does not want to tackle an issue, it simply does not comment on it.

Is this legally possible?
Legally this is more than questionable, but it is being done.

According to the explanation, death penalty can be introduced in case of war or danger of war. This is a very theoretical case.
Really? Are not we at war in Afghanistan? Who is defining war? What is danger of war? What about the Yugoslavia war?

But is not it normal that deserters are executed in war or in times of war?
Yes, in dictatorships.

It is even more frightening that in case of insurgency or riot, killings are possible without law and without any approval by a judge. Who is defining this?
Exactly. I think that Monday demonstrations in Leipzig [which led to the overthrow of the communist Regime in East Germany in 1989] can be defined as riot, like virtually any non-authorized demonstration. Or take the turmoil in Greece or the demonstrations recently in Cologne and Hamburg. All you need is a few punks [“Autonome”] throwing stones.

There are politicians and jurists who argue that the fundamental rights of a country can only be improved by the EU treaty, but not reduced.
The Charter of Fundamental Rights of the European Union does not contain any precedence or reservation of national fundamental rights or a principle of favorability with respect to these rights. Those who claim this prove their ignorance of the Union legislation.

How is this possible?
They argue with article 53 of the Charter of Fundamental Rights. But this article contains no such provision. It says: “Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.” The crucial part is the clause “in their respective fields of application”. It means that the EU fundamental rights are decisive if the Union’s law is applicable and the national fundamental rights are decisive if national law is applicable. There is no case when both fundamental rights texts are decisive.

But could not the European Court of Justice declare that national law has precedence in this case?
This is something that the ECJ has never done. It always holds itself authorized. Besides, the prohibition of death penalty is no fundamental right. Hence, the argument that the fundamental rights can never be reduced does not apply here.

Another argument from the vicinity of the EU commission is that the article is there to allow the admission of states like Turkey.
But this is ridiculous. As a community, we have to say that we do not admit countries where people are killed, not vice versa.

Do the politicians know what they decide on?
Maybe not all of them. But definitely the CDU/CSU faction. I have distributed a five page summary of my lawsuit, so that the parliamentarians do not have to read too much. But the topic should also be known within the SPD because one of its parliamentarians, Professor Meyer, has tried to stop the ruling in Nice.

Can you imagine one reason why anything like this is passed?
Obviously, the governments expect riots. Skepticism towards the governments and the EU apparatus is growing and growing. The financial and economic crisis increases the pressure on the population.

So they want to be allowed to shoot them?
This is what it looks like.

What can we do against it?
I think that the EU Treaty permits resistance, because it undermines democracy.

What kind of resistance do you mean?
For example demonstrations and all forms of public dissent, the way of Gandhi.

…which then can be interpreted as a riot. This sounds like a dictatorship.
The word dictatorship is technically not correct. Since the Roman Republic, dictatorship is defined as a fixed-term emergency constitution. I would rather speak of despotism which can degenerate into tyranny. By the way: if in October the Irish approve of the Treaty of Lisbon, the abolishment of the death penalty is eliminated. •

Source: Focus-Money 35/2009, 19 August 2009

Article 52 of the Charter of Fundamental Rights

Scope and interpretation of rights and principles
3.   In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.
7. The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States.

Article 2 of the Charter of Fundamental Rights – Right to life

1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.

Source: Charter of Fundamental Rights of the European Union, 14 December 2007,  Official Journal C 303/1

Explanation on Article 2 – Right to life

1. Paragraph 1 of this Article is based on the first sentence of Article 2(1) of the ECHR, which reads as follows:
‘1. Everyone‘s right to life shall be protected by law (…)’.

2. The second sentence of the provision, which referred to the death penalty, was superseded by the entry into force of Article 1 of Protocol No 6 to the ECHR, which reads as follows:
‘The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.’
Article 2(2) of the Charter is based on that provision.

3. The provisions of Article 2 of the Charter correspond to those of the above Articles of the ECHR and its Protocol. They have the same meaning and the same scope, in accordance with Article 52(3) of the Charter. Therefore, the ‘negative’ definitions appearing in the ECHR must be regarded as also forming part of the Charter:
(a) Article 2(2) of the ECHR:
‘Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.’

(b) Article 2 of Protocol No 6 to the ECHR:
‘A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions (…)’.

Source: Explanations relating to the Charter of Fundamental Rights, (2007/C 303/02)

The EU’s Satanic Plans: The Return of Death Penalty

The European Union has decided to reintroduce the death penalty for insurgents. Does this seem unbelievable to you? Have you heard nothing of it in the press? Then you better sit down first and take a deep breath.
All of the members states of the European Union have abolished the death penalty. The worst punishment that the head of an insurgent has to face at this time is a jail sentence. However, the Lisbon Treaty now allows the death penalty as punishment for insurgents. Against the background of the financial crisis the European Union is expecting major revolts in many of the member countries – and is therefore pushing for the Lisbon Treaty to come into force as soon as possible.
As a result of the Irish vote against the Lisbon Treaty in June of 2008 its enforcement was initially blocked. The Treaty seeks to extensively broaden the powers held by the 27 EU commissioners, to establish the office of a powerful EU president – which would practically transform the national laws of member states into historical relicts – and in some cases allow for capital punishment. In this context, once the EU reform treaty comes into force, the death penalty would be explicitly allowed, whenever necessary, for the purpose of “[lawfully] quelling a riot or insurrection.” The death penalty can also be sentenced in the EU in the future for deeds “committed in time of war or on immediate danger of war.” All this was published in small print in the the European Union’s official newsletter’s commentary on the EU Charter of Fundamental Rights, which would come into force with the Lisbon Treaty. It seems that no one has taken notice of this particular passage, since Article 2 of the new Fundamental Rights Charter also states:
“No one shall be condemned to the death penalty, or executed.” That seemed explicit – only the small print includes these exceptions.
The small print to the Treaty of Lisbon reads as follows:
“(2) Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent excape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
The above was quoted in the official European Union’s newsletter of 14 December 2007. In effect, the abolishment of the death penalty is immediately relativised and annuled by the small print in the commentary.
In the case that the capital punishment becomes necessary according to paragraph c) to “quell a riot or insurrection”  then the death sentence willl be possible in the EU in the future – despite its official prohibition.   Did you know that? In April 2008 the German Bundestag  voted with a 2/3 majority comprising of Christian Democrats, Social Democratis, the Liberal and Green parties, for relinquishing German sovereignty in favour of the EU and the Lisbon Treaty and its provisions for reintroducing the death sentence for insurgents. During the debate, Chancellor Angela Merkel (CDU) praised the EU reform treaty as a “great project”.
Once the Lisbon Treaty comes into force, the EU government will become transformed into a powerful central government – like the former Soviet Union. Individual republics will then become meaningless and be forced to serve the well-being of the EU empire instead of its own interests. The Irish, who in contrast to Germany were able to vote in a referendum on the EU reform and on Ireland’s sovereignty, rejected the Treaty in June 2008, particularly also because of its implications of reintroducing the death penalty. In the autumn of 2009 Ireland will have to vote on the Treaty a second time.
In order for everything to function smoothly, on 18 March the 27 EU commissioners in Brussels secretely agreed to carry out a coup. This entailed breaking Irish law on several points. Before the vote and despite the current Irish law prohibiting political advertising, the EU carried out a political advertising campaign through the state media to influence the people’s vote toward favouring the Lisbon Treaty. This was financed by the EU citizen’s taxes. In order to ensure that the Irish vote go ‘right’ this time, the 27 EU states decided on 18 March in Brussels to buy votes: Bishops preaching in favour of relinquishing Irish soverei­ngty to the Treaty of Lisbon in their churches should receive money from EU sources. At the fore of all of this stood the EU parliament which even proclaimed that it wanted to see the Irish ‘No’ corrected as soon as possible, and that to this end Irish Bishops should even be put under immediate pressure. Many EU commissioners apparently considered this move too drastic – and agreed to secretely buy votes instead.

Source: Udo Ulfkotte, Vorsicht Bürgerkrieg! p. 361–363, ISBN 978-3-938516-94-2
(Translation Current Concerns)