Thu 22 May 2008
On Apr.18, 2008, a post was published on this blog: "The Lisbon Treaty Legalizes EU-Dictatorship with Death Penalty, wherein Helga Zepp-Larouche quoted Professor Karl Albrecht Schachtschneider as saying the Lisbon Treaty would mean the re-introduction of death penalty in the EU. Now a dicussion is taking place as for whether this statement is legally correct or not, e.g. on the well-informed “Gates of Vienna” blog.
Baron Bodissey of the Gates of Vienna wrote this very concise and relevant question to me: "
"The issue is this: "…And this is not in the treaty, but in a footnote, because with the European Union reform treaty, we accept also the European Union Charter, which says that there is no death penalty, and then it has a footnote, which says, "except in the case of war, riots, upheaval"- then the death penalty is possible. Schachtschneider points to the fact that
this is an outrage, because they put it in a footnote of a footnote, and you have to read it, really like a super-expert to find out!"
I want to know where this "footnote" is. I can't find it, and nobody else has found it so far".
Professor Karl Albrecht Schachtschneider was Professor at the Rechts- und Wirtschaftswissenschaftliche Fakultät der Friedrich-Alexander-Universität Erlangen-Nuremberg - previous Chair of Public Law
Professor Schachtschneider has repeated his statement on March 26, 2007, in the "Welt Online". Considering the the weighty consequences of the re-introduction of death penalty through the Lisbon Treaty I started searching and with the help of BüSo, Germany, I found the Explanation of Prof. Karl Albrecht Schachtschneider´s statement on the re-inroduction of death penalty.
Unfortunately, I have to admit that this explanation occurs tenable to a layman like me, which is to say with the Lisbon Treaty death penalty will be re-introduced in Europe. For Union law takes precedence over national law!!
Texts about death penalty .
As for the links: Some refer to the official texts in German, where I have not been able to find the corresponding text in English. The quoted references seem to be correct.
*The Treaty of Lisbon .
The position of the European Charter of Fundamental Rights is declared in ARTICLE 6 (1) of the Lisbon Treaty. "The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties."
*Charter of Fundamental Rights
Quotation from the preamble of the Charter of Fundamental Rights as for the position of the clarifying explanations (Dec. 14, 2007): "In this context the Charter will be interpreted by the courts of the Union and
the Member States with due regard to the explanations prepared under the authority of the Praesidium
of the Convention which drafted the Charter and updated under the responsibility of the Praesidium of
the European Convention."
Clarifying Explanations to the EU Charter of Fundamental Rights
Source: Amtsblatt der Europäischen Union (official German)
3. The decisions of article 2 of the Charter correspond to the decisions of the mentioned article of the European Convention on Human Rights 1950 (ECHR 1950) and the supplementary protocol . They have according to article 52 passage 3 of the Charter the same meaning and significance/reach . So the "negative definitions" of the ECHR 1950 must also be considered part of the Charter:
a) Article 2 passage 2 ECHR 1950:
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 escape of a person lawfully detained;
- (c) in action lawfully taken for the purpose of quelling a riot or insurrection.
Right: Hanging in iran. Under special circumstances this is also possible in the EU.
b) Article 2 of protocol nr.6 of the ECHR 1950:
"*A state can in its legal system provide for death penalty for offences committed in time of war or on immediate danger of war. *; This penalty is only allowed in cases provided in the penal code and in accordance with its provisions…"
The Treaty has precedence over the legal system of member states
Here the relevant passages from the declarations of the supplementary protocol of the Treaties of Lisbon: 17. Declaration on Precedence: The Conference refers to the fact that the Treaties and the legal system laid down by the Union on the basis of the treaties in accordance with the permanent jurisdiction of the EU Court of Justice under the conditions laid down in this juridiction take precedence over the legal system of the member states.
Furthermore, the Conference has decided that the report of the Judicial Service of the Council on Precedence is to be attached to this final act in the edition of the Document 11197/07 (JUR 260):
Report of the Judicial Service of the Council as of June 22, 2007
After the jurisdiction of the (EU) Court of Justice the precedence of EC legal system is one of the pillars of the legal system of the Community. According to the Court of Justice this principle ensues from the special character of the European Community. At the time of the first verdict within the framework of this permanent jurisdiction (Rechtssache 6/64, Costa versus ENEL, 15 Juli, 1964 (1) this precedence was not mentioned in the Treaty. Nor is it today. The fact that the principle of this precedence has not been admitted to the future Treaty changes nothing at its existence and the existing jurisdiction of the Court of Justice.
From(…) ensues that no internal national regulations - no matter how they are composed - can have precedence over the legal system created by the Treaty, a system which, so to speak, flows from an autonomous (= self-made) source of justice, because of this autonomy, unless its character of Community justice is taken away and unless the legal basis of the Community itself is questioned.
Source: http://eur-lex.europa.eu/de/treaties/dat/12007L/htm/C2007306DE.01025602.htm http://eur-lex.europa.eu/de/treaties/dat/12007L/htm/C2007306DE.01023101.htm
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