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Parliamentary questions
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8 July 2008
Joint answer given by Mr Barrot on behalf of the Commission
Written questions : E-2744/08 , E-3106/08
Question references: E-2744/2008, E-3106/2008

The Commission does not know to which document the Honourable Member is referring when he says ‘explanatory note in the European Constitution’. This could well be the ‘Explanations relating to the Charter of Fundamental Rights’, annexed to this Charter(1). These explanations were originally prepared under the authority of the Praesidium of the European Convention which drafted the Charter of Fundamental Rights of the European Union in 2000.

In relation to Article 2 of the Charter, ‘Right to life’, the explanations quote in particular Article 2(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which states that ‘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’.

They also quote Article 2 of Protocol No 6 to the ECHR, according to which ‘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’.

Neither these references to the Charter nor even Article 2 itself have the effect of allowing the death penalty to be reintroduced in Europe.

It is worth noting that Protocol No 13 to the ECHR is in fact intended to abolish the death penalty in all circumstances, even in time of war or of imminent threat of war. This Protocol was signed on 5 May 2002 and has to date been ratified by 40 countries. The Member States which have not yet ratified it are Italy, Latvia, Poland and Spain.

(1)OJ C 303, 14.12.2007.

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