Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement
The European Convention on Human Rights per se allows for the death
penalty; this follows from article 2(1), which provides that “no one shall be deprived of
his life intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law”. However, according to
article 1 of Protocol No. 6 to the Convention, “the death penalty shall be abolished”
and “no one shall be condemned to such penalty or executed”. Yet article 2 of the
Protocol makes provision for the use of the death penalty “in respect of acts committed
in time of war or of imminent threat of war”. Once into force, Protocol No. 13 to the
Convention will, however, outlaw the death penalty at all times. Signed on 3 May 2002
in Vilnius, Protocol No. 13 had, as of 14 May 2002, 3 of the 10 ratifications required for
its entry into force.223
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Neither the International Criminal Court nor the International Criminal
Tribunals for Rwanda and the former Yugoslavia can impose the death penalty (see
art. 77 of the Statute of the International Criminal Court and arts. 23 and 24 of the
respective Statutes of the International Criminal Tribunals for Rwanda and the former
Yugoslavia).
Under international human rights law, a heavier penalty cannot be
imposed than that applicable at the time of the commission of the offence.
If a lighter penalty has been introduced since the commission of the
offence, the convicted person shall, however, benefit therefrom.
Punishments must be consistent with international human rights
standards. They must in no circumstances amount to torture, inhuman,
cruel or degrading treatment or punishment. Corporal chastisement is
unlawful to the extent that it amounts to such treatment. Such
chastisement is in general considered inappropriate by the international
monitoring organs.
The use of the death penalty is strictly circumscribed under international
human rights law; if permissible at all, it is limited to the most serious
crimes; and cannot be imposed for crimes committed by persons under
eighteen years of age. Many countries are now legally committed not to
resort to the use of capital punishment in times of peace.
223 See http://conventions.coe.int/.
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Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
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