CDL-INF(1999)004e
Strasbourg, 24 March 1999
OPINION ON THE COMPATIBILITY
OF THE DEATH PENALTY WITH THE CONSTITUTION OF ALBANIA
adopted
by the Commission at its 38th Plenary meeting
(Venice,
22-23 March 1999)
on
the basis of the report by
Mr
Giorgio MALINVERNI (Switzerland)
Mrs
Hanna SUCHOCKA (Poland)
1.
INTRODUCTION
On 25
January 1999 the Bureau of the Parliamentary Assembly of the Council of Europe
decided to consult the Venice Commission on the compatibility of the death
penalty with the Constitution of Albania. The Venice Commission received the
request for an opinion by letter of 27 January 1999 from the Clerk of the
Assembly, Mr Bruno Haller.
Mr Malinverni
and Ms Suchocka as Rapporteurs submitted their comments and their report was
forwarded to the Bureau of the Assembly on 11 February 1999.
This
opinion was adopted by the plenary Commission at its 38th meeting in Venice on
22-23 March 1999.
2.
OPINION OF THE
VENICE COMMISSION
Subject of the opinion
The Venice Commission has previously
examined the question of the death penalty and its application in Albania. In
its “Opinion on the draft Constitution of Albania submitted for popular
approval on 6 November 1994” (see Venice Commission, Annual Report of Activities for 1994, p. 23), the Commission
criticised the provision in the draft Constitution allowing for the imposition
of the death penalty on males over 18 years of age found guilty of the most
serious crimes (Article 19 of the draft), referring notably to Protocol No. 6
to the European Convention on Human Rights (hereinafter ECHR). During the
drafting of the present Constitution of Albania, the members of the Venice
Commission advocated the adoption of a provision specifically abolishing the
death penalty. In their opinions on the draft Constitution Parts I and II
approved by the Constitutional Commission as at 21 April 1998, Messrs Batliner,
Malinverni and Russell pointed out that both variants of Article 7 of Part II
of the draft, dealing with the right to life, neither contained an express
prohibition of nor gave express permission for capital punishment, and recommended
that this position be clarified. (See, respectively, documentsCDL(98)50, 47
rev. and 49.) The question now is to examine the compatibility of the death
penalty with the Constitution of Albania, having regard to the Constitution of
21 October 1998.
It is thus propitious to begin by
examining, in the context of the Constitution as a whole, the text of the
articles relating to the right to life, and notably Article 21.
The Commission further considers that,
although it is not required to comment on the commitments undertaken by Albania
at its accession to the Council of Europe, these must be taken into account in
examining the effect of certain constitutional clauses. This is so not only
because of the importance assigned to international law in the Constitution and
the provisions made for its direct applicability (Article 122), but also
because of the increasing osmosis between internal and international law and
the fact that, as far as fundamental human rights are concerned, it is becoming
increasingly artificial to draw a distinction between a State’s obligations
under its own constitutional law and under public international law. In the
European legal area there is a growing tendency – evidenced in the judgments of
Constitutional Courts (and their equivalents) published regularly in the Venice
Commission’s Bulletin on Constitutional
Case-Law – for the review of constitutionality to include and even to
overlap with a review of compliance with obligations imposed by treaties.
Article 21
Article 21 of the Constitution of Albania
states simply:
“The life of a person is
protected by law.”
This is not so strong a
statement of the right to life as that which may be found in other Constitutions,
and contains no express prohibition on capital punishment. (See, for example
and in contrast, the Constitutions of Croatia (Article 21), Portugal (Article
24), Romania (Article 22), Slovakia (Article 15), Slovenia (Article 17) and
“the former Yugoslav Republic of Macedonia” (Article 10).)
Furthermore, it is not the
Constitution but the law which is said to protect the life of a person.
Thus it might be argued that
Article 21 of the Albanian Constitution, despite the protection it undoubtedly
accords to a person’s life, leaves room for the legislature to provide for the
death penalty to be imposed in certain cases, provided certain legal
protections are ensured.
This article cannot,
however, be interpreted in isolation from the rest of the Constitution.
Moreover, an examination of the context (both constitutional and in
international law, particularly international law applicable in Europe), throws
an entirely different light on the interpretation which should be given to the
article.
The lack of an express
mention of the death penalty in the Constitution of Albania.
Article 21 of the
Constitution of Albania closely resembles and may be said to be modelled on the
first sentence of Article 2, paragraph 1 of the ECHR, which states, “Everyone’s
right to life shall be protected by law.” Significantly, however, Article 2,
paragraph 1 of the ECHR goes on to deal explicitly with capital punishment and
to provide for the (only) circumstances in which a person may be sentenced and
put to death, “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.” Paragraph 2 of the same article
provides for certain other cases in which deprivation of life shall not be
regarded as having been carried out in contravention of the article.
No such provision is made in
the Albanian Constitution, where the protection of life by law is stated
without exception. Had the death penalty been contemplated, explicit mention of
it should have been made in Article 21 of the Constitution in accordance with
Article 2 of the ECHR, on which it is based. This is all the more remarkable in
that many of the other rights provided for in Part Two of the Constitution, on
fundamental human rights and freedoms, are coupled with extensive exceptions.
(See for instance, in the chapter on personal rights and freedoms, the
exceptions provided for in Articles 26, 27, 29, 34, 35, 37 and 43.) The fact
that no explicit exceptions to the protection of life are provided for in the
Constitution whereas many other rights are clearly subject to exceptions is a
clear indication that no exception, and in particular the death penalty, is
intended to be allowed in the case of the protection of life.
It should finally be noted
that a similar structure and logic were used in the drafting of the
International Covenant on Civil and Political Rights (hereinafter ICCPR), to
which Albania acceded on 4 October 1991. Here again, after the right to life is
stated, express provisions are laid down concerning the death penalty (Article
6 of the ICCPR). This highlights once more the fact that express provision
should have been made in the Constitution of Albania had the death penalty been
intended to be permitted.
Interpretation of similar constitutional provisions in
constitutional case-law
The Constitution of Lithuania contains a
provision very similar to that of the Albanian Constitution concerning the
right to life. Article 19 of the Constitution of Lithuania states, “The right
to life of individuals shall be protected by law.” This article recently came
under scrutiny before the Constitutional Court of Lithuania in case no. 2/98,
concerning the compliance with the Constitution of the death penalty provided
for under Article 105 of the Criminal Code. A number of other constitutional
issues were raised in that case, but in reaching its conclusion that the death
penalty provided for was unconstitutional, the Lithuanian Constitutional Court,
having examined the other rights and exceptions to rights laid down in the
Constitution of Lithuania, concluded that the wording of Article 19 of the
Constitution allowed for no exception permitting the deprivation of life on
behalf of the State.
Furthermore, in part five of its
judgment, dealing specifically with the issue of the protection of life by the
law in accordance with Article 19 of the Constitution, the Court noted that it
is particularly difficult to sustain the argument that life is protected by the
law when the law allows for the deprivation of life. There is always a possibility that a mistake may be made (and
mistakes have been made in many States in the imposition of the death penalty),
and such a mistake is impossible to rectify once it has been made. As the Court
noted, the mere possibility that a person who does not deserve it in accordance
with the law or who is innocent may be sentenced to death is not in line with
the right to life which is guaranteed by the Constitution.
The same reasoning clearly applies to the
protection of life itself that is afforded by Article 21 of the Constitution of
Albania. A law allowing for the imposition of capital punishment cannot provide
sufficient guarantees to ensure that the life of a person is protected by law
in accordance with this article.
It should finally be noted that human life may be protected even in the
absence of an explicit constitutional provision to this effect. The Polish
Constitutional Tribunal in a recent decision (K 26/96 of 28 May 1997) held that human life was a
constitutional value notwithstanding the lack of a constitutional provision in
that country directly regarding the protection of life. The Tribunal reasoned
that because the principle of the democratic state governed by the rule of law
can only be realised as a community of people, whose basic attribute is life,
it may be inferred from this principle that the protection of human life is a
constitutional value regardless of the fact that this is not explicitly stated
in the Constitution of Poland.
The Albanian constitutional context
There is a series of provisions in the
Albanian Constitution other than Article 21 that have a close bearing on the
right to life. In particular, paragraph 2 of Article 17 states that the limitations
on the rights and freedoms provided for in the Constitution “may not infringe
the essence of the rights and freedoms”. The right to life is the most
essential of all the rights and freedoms provided for in the Constitution, and
indeed may be said to be the very essence of all the other rights and freedoms,
for without it, these are worth nothing. The primordial importance of the right
to life is recognised in the Albanian Constitution by its position as the first
of the personal rights and freedoms guaranteed in Chapter II of Part Two, on
the Fundamental Human Rights and Freedoms and by its inclusion in the hard
nucleus of rights from which no derogation can be made even in time of war
(Article 175). It may thus be asserted that capital punishment, which is the
denial of the right to life, cannot be imposed without infringing the essence
of the other rights and freedoms provided for in the Constitution of Albania,
in conflict with the requirement of Article 17.
Furthermore, the Preamble states that the
Constitution is established “with the pledge for the protection of human
dignity”, thus elevating the protection of human dignity to a position of
particular importance, as the tenor of this pledge prevails over the entire
Constitution. Indeed, the fundamental nature of the pledge is revealed in
Article 3, where the dignity of the
individual is affirmed as one of “the bases of the State”. The protection of
human dignity is of particular relevance to the application of capital
punishment, and is discussed further below.
Article 25 of the Constitution states in
its entirety, “No one may be subjected to cruel, inhuman or degrading torture,
punishment or treatment.” The prohibition on such treatment is contained in
many international documents, notably in Article 3 of the ECHR and in the
European Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment, to both of which Albania is a party.
The parallel between the death penalty
and the infliction of torture and inhuman or degrading treatment or punishment
has frequently been drawn. Indeed, a powerful statement of the inseparable link between the two is to be
found in the Constitution of Romania, by their inclusion in the same article
(Article 22 on the right to life, to physical and mental integrity), which
reads as follows:
“1. The right to life, as
well as the right to physical and mental integrity of a person are guaranteed.
2.
No one may be subjected to torture or
to any kind of inhuman and degrading punishment or treatment.
3.
The death penalty is prohibited.”
The reasons behind such a close
association between the death penalty and the infliction of cruel, inhuman and
degrading treatment as well as the deprivation of dignity were evoked by the
South African Constitutional Court in the case of State v Makwanyane and Mchunu (Judgment No. CCt/3/94, 6 June 1995,
cited with approval by Gleeson CJ of the New South Wales Supreme Court, Court
of Criminal Appeal in R v Boyd No.
60605/94). As Chaskalson P put it:
“Death is a cruel
penalty and the legal processes which necessarily involve waiting in
uncertainty for the sentence to be set aside or carried out, add to the
cruelty. It is also an inhuman punishment for it involves, by its very nature,
a denial of the executed person’s humanity and it is degrading because it
strips the convicted person of all dignity and treats him or her as an object
to be eliminated by the state.”
The Franck report of 15 September 1994 on
the abolition of the death penalty, submitted to the Parliamentary Assembly of
the Council of Europe (Doc. 7154), evinces the same arguments.
The European Court of Human Rights also
examined the question in detail in its Soering
v. UK judgment (Series A, no. 161), in which it was held that extradition
to a country where there was a risk of exposure to the “death row phenomenon”
could constitute a violation of Article 3 of the ECHR. Similar concerns
underpin the prohibition of extradition contained in many extradition
agreements in circumstances where there is a risk that the extradited person
may be exposed to the death penalty and the inevitable suffering it induces.
The underlying concern is that although
the internal law of a country may not acknowledge capital punishment to be
cruel, inhuman or degrading in and of itself, the reality is quite different.
The death penalty exposes those on whom it is imposed to lengthy proceedings,
uncertainties, anxieties and torments and eventually deprives them of their
very humanity, and these inherent and inevitable conditions and effects may
clearly be seen to be prohibited treatment.
In practice, therefore, both Article 25
of the Constitution of Albania and Article 3 of the ECHR to which Albania is a
party, leave no room for the execution of the death penalty.
The European constitutional context
Finally, more light may be thrown on the
constitutionality of the death penalty in Albania by an examination of the
European legal environment in which it figures. Solyom J, in the concurring
judgment he delivered as part of decision 23/1990 of the Hungarian
Constitutional Court (24 October 1990) on the constitutionality of the death
penalty in Hungary, recommended that “the present international position
regarding capital punishment be taken into account as an objective frame of
reference by the Constitutional Court”. Similarly, the Constitutional Court of
Lithuania examined the European context in its ruling of 9 December 1998, and
reached the conclusion that “the abolition of the death penalty is becoming a
universally recognised norm”.
In the context of the Council of Europe,
Protocol No. 6 to the ECHR is especially pertinent. Although this is an
optional protocol, the intention to ratify it has become a necessary condition
for a State’s accession to the Council of Europe. The Parliamentary Assembly of
the Council of Europe, by its Resolution 894 (1988), placed Protocol No. 6 on a
list of conventions of which the signature and ratification were to be
considered a matter of high priority. It subsequently called unequivocally for
the abolition of capital punishment in its Resolution 1044 (1994) – an appeal
which was reiterated just as unequivocally in its Resolution 1097 (1996). Since
Latvia’s accession to the Council of Europe in 1994, all new member States have
undertaken to sign and ratify the ECHR as well as the protocols thereto,
including Protocol No. 6 on the abolition of the death penalty. Albania, when
it acceded to the Council of Europe, undertook to sign, ratify and apply
Protocol No. 6 in time of peace within three years of accession and to place a
moratorium on executions until the total abolition of capital punishment. The
Final Declaration of the Second Summit of Heads of State and Government of the
Council of Europe (Strasbourg, 11 October 1997) again called for the universal
abolition of capital punishment and insisted that existing moratoria be
maintained in the meantime. Resolutions 1111 (1997) and 1145 (1998) condemned
the violations of these moratoria that had occurred in two member States of the
Council of Europe.
The European Court of Human Rights has
stressed that safeguarding the right to life is one of the most fundamental of
the provisions of the ECHR. The importance of the right to life and the
prohibition of torture (Article 3 of the ECHR) was recently reaffirmed by the
European Court of Human Rights in its judgment of 9 October 1997 in the case of
Andronicou and Constantinou v. Cyprus
(Reports 1997-VI, no. 52, p. 2059
ff., § 171), where the Court underlined that:
“Article 2
ranks as one of the most fundamental provisions of the Convention... Like
Article 3 of the Convention it enshrines one of the basic values of the
democratic societies making up the Council of Europe. As such its provisions
must be strictly construed. This is particularly true of the exceptions
delineated in paragraph 2 of that Article...”
See also the judgment in McCann v. UK (Series A, no. 324). These
preoccupations also underpinned the Court’s decision in Soering, as discussed above.
It can therefore be asserted, and with
confidence, that the national and international dimensions of European law tend
both independently and together towards the abolition of capital punishment.
The evolution in this direction is clear and is becoming a cornerstone of
European public order. The execution of the death penalty is no longer
tolerated, and where provision for the imposition of such a sentence still
exists, it is only accepted within the strict confines of the logic of
transition. The Constitutions of the Council of Europe member States cannot be
interpreted in isolation from these considerations.
3. CONCLUSIONS
The Commission finds that the
Constitution of Albania contains no provision which either expressly allows for
or expressly prohibits or abolishes the death penalty.
It is therefore necessary to examine the
question of the constitutionality of the death penalty through an analysis of
the relevant provisions of the Constitution read in the light of the
Constitution as a whole and taking into account the international commitments
that are binding on Albania as well as relevant international developments.
The Commission notes the positions of
particular importance in which the Constitution of Albania places the right to
life, although the terms in which this right is expressed are not as
categorical as they could be, and the protection of human dignity. It also
underlines the absolute lack of provision for exceptions to the protection of
the right to life, with the strong inference that can be drawn from this,
especially in view of the fact that clear exceptions are provided for in the
case of other rights and freedoms, that no exception was intended to be
provided in the case of the right to life. Moreover, the effect of Article 25
of the Constitution, which lays down a prohibition on torture and other cruel,
inhuman or degrading punishment or treatment, combined with the fundamental
importance accorded to the dignity of the individual in Article 3 of the
Constitution and the pledge to protect it contained in the Preamble, is to make
it practically impossible to apply and execute the death penalty without
contravening the requirements of the Constitution. Finally it takes note of the
fact that the death penalty is now no longer an acceptable punishment in the
European legal field, except within the strict confines of the logic of
transition, and that its execution is no longer tolerated.
Having regard to:
- the absence of an
explicit constitutional basis for allowing the death penalty;
- the absence of an exception
(express or implied) to the protection of life provided for in Article 21 of
the Constitution, which has incorporated only the general rule of Article 2 of
the ECHR (right to life) without also incorporating the exception (death
penalty);
- the important
position given to the protection of life by its placement at the top of the
hierarchy of rights laid down in the Constitution;
- the requirement that
any limitations on rights and freedoms laid down in the Constitution may not
infringe the essence of these rights and freedoms;
- the fact that the
constitutional prohibition of cruel, inhuman or degrading torture, punishment
or treatment and the fundamental importance of the dignity of the individual
enunciated in Article 3 of the Constitution and its Preamble leave no room, in
practice, for imposing and carrying out the death penalty in Albania;
- the evolution of the
European public order towards the abolition of the death penalty;
the Commission considers that the death
penalty must be deemed to be inconsistent with the Constitution of Albania.
