Volume 16 (2010)

Volume 16 (2010) / Issue 1

Jon Yorke, 'Inhuman Punishment and Abolition of the Death Penalty in the Council of Europe' (2010) 16 European Public Law, Issue 1, pp. 77–103

Abstract

This article investigates the contribution of the prohibition against inhuman punishment within Article 3 of the European Convention on Human Rights, for the abolition of the death penalty. It analyses the evolution and orientation of the Council of Europe’s anti-death penalty discourse from the early post-Convention discussions to the most recent enactments of the Parliamentary Assembly and the Committee of Ministers. Then the jurisprudence of the European Court of Human Rights, which interprets this position, is detailed to determine whether Article 3 provides a per se prohibition against the death penalty, or whether it can only be used to isolate specific aspects of the capital judicial system. It is clear that Article 3 has provided a hegemonic platform from which abolition can be achieved. However, the different Council organs are not yet in complete agreement on the reach of Article 3 for the technical penological processes. Hence to clarify the abolitionist discourse, and establish a uniform position, it may be of benefit for the Council of Europe to adopt a new policy statement on how Article 3 is to be used to unequivocally denounce the punishment.

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ISSN: 1354-3725
ID: EURO2010005