Document - Constitutional prohibitions of the death penalty
Constitutional Prohibitions of the Death Penalty
One of the most important steps a country can take to secure human rights for everyone under its jurisdiction is to abolish the death penalty by removing the penalty from its laws. If the country also prohibits the death penalty under its constitution, abolition becomes even more secure.
Out of the 69 countries in the world which have to date abolished the death penalty for all crimes, at least 38 have prohibited it in their constitutions, often on human rights grounds. The latest to do so is Luxembourg, which amended its constitution in April 1999 to prohibit the death penalty. Nine other countries have constitutional provisions which limit the crimes for which the death penalty can be imposed.
This paper sets forth the texts of the relevant constitutional provisions. These examples may encourage other countries to adopt similar provisions.
In most legal systems the constitution is the supreme law of the land; other laws must not conflict with it, and it is harder to amend than other laws. Enshrining the abolition of the death penalty in such a constitution is a way of solidifying abolition by establishing an additional legal basis which can serve as an impediment to any hasty attempt to bring the punishment back.
Often a constitution can be seen as the legal embodiment of a country’s highest values, extending human rights guarantees to everyone in the country’s jurisdiction. By enshrining abolition in its constitution, a country shows the importance it attaches to the decision it has taken to abolish the death penalty.
Amnesty International opposes the death penalty as a violation of human rights, holding that it violates the right to life and is the ultimate cruel, inhuman and degrading punishment. Constitutional prohibitions which link the abolition of the death penalty to human rights, in particular the rights to life and physical and mental integrity (and specifically the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment) give support to Amnesty International’s position.
Support for this position comes also from court decisions, including the June 1995 decision of South Africa’s Constitutional Court that the death penalty was contrary to the country’s interim constitution as a violation of the right not to be subjected to cruel, inhuman or degrading treatment or punishment, and the Hungarian Constitutional Court ruling of 24 October 1990 that the death penalty violates the right to life and human dignity as provided under the country’s constitution. Further support is evidenced by the adoption of international and regional instruments providing for the abolition of the death penalty: the Second Optional Protocol to the International Covenant on Civil and Political Rights, Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention on Human Rights”) and the Protocol to the American Convention on Human Rights to Abolish the Death Penalty. Furthermore, under the Statute of the International Criminal Court adopted in 1998, the death penalty is excluded from the punishments which this court will be authorized to impose, even though it has jurisdiction over extremely grave crimes: crimes against humanity, including genocide, and violations of the laws of armed conflict. Similarly, in establishing the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda in 1993 and 1994 respectively, the UN Security Council excluded the death penalty for these crimes.
Information on constitutional prohibitions of the death penalty is presented below in three tables.
Table 1 lists the countries whose constitutions prohibit the death penalty, with quotations from the relevant articles.
Table 2 lists the countries whose constitutions limit the scope of the death penalty, with quotations from the relevant articles.
Table 3 lists the countries in the preceding tables and indicates whether the constitutional prohibition or restriction is on human rights grounds; and, if so, whether there is a specific reference to the right to life and/or the right to physical or mental integrity (indicated by the letter “T” for “true”). (The link to human rights may be shown either by a specific reference or by the inclusion of the prohibition or restriction of the death penalty in the section of the constitution which deals with human rights.)
(This report was prepared with the assistance of Benjamin Rowse, an intern at Amnesty International.)
Table 1. Constitutions which Prohibit the Death Penalty
|
Country |
Title of constitution |
Text |
|---|---|---|
|
ANDORRA |
Constitution of the Principality of Andorra (1993) |
Article 8(3) states: "3. The death penalty is prohibited." Article 8 is included under Title II, "Rights and Freedoms". |
|
ANGOLA |
Constitutional Law of the Republic of Angola (1992) |
Article 22 states: "1. The State shall respect and protect the life of the human person. 2. The death penalty is prohibited." |
|
AUSTRIA |
Federal Constitutional Law of the Republic of Austria (1920, as amended in 1968) |
Article 85 states: "The death penalty is abolished." |
|
CAMBODIA |
Constitution of the Kingdom of Cambodia (1993) |
Article 32 states: "All people have the right to life, freedom and personal security. There shall be no capital punishment." |
|
CAPE VERDE |
Constitution of the Republic of Cape Verde (1992) |
Article 26(2) states: "No one shall be subjected to torture or cruel, degrading or inhuman punishment or treatment, and in no circumstances shall there be the death penalty." |
|
COLOMBIA |
Constitution of Colombia (1991) |
Article 11 states: "The right to life is inviolable. There will be no death penalty." |
|
COSTA RICA |
Constitution of the Republic of Costa Rica (1949) |
Article 21 states: "Human life is inviolable." Article 21 is included under Title IV,"Individual Rights and Guarantees". |
|
CROATIA |
Constitution of the Republic of Croatia (1990) |
Article 21 states: "Every human being shall have the right to life. In the Republic of Croatia there shall be no death penalty." |
|
CZECH REPUBLIC |
Charter of Fundamental Rights and Freedoms (1992) |
Article 6, dealing with the right to life, states: "... (3) There shall be no death penalty." |
|
DOMINICAN REPUBLIC |
Constitution of the Dominican Republic (1966) |
Article 8(1) refers to "the inviolability of life" and states: "Therefore, neither the death penalty, torture, nor any other punishment or oppressive procedure or penalty that implies loss or diminution of the physical integrity or health of the individual may be established." |
|
ECUADOR |
Constitution of the Republic of Ecuador (1979, as codified in 1998) |
Article 23 states in part: "...the State recognizes and guarantees all people the following: (1) The inviolability of life. There is no death penalty. ..." |
|
FINLAND |
Constitution Act of Finland (1919, as amended in 1995) |
Section 6 states in part: "Everyone shall have the right to life and personal liberty, physical integrity and security of person. No one shall be sentenced to death, tortured or otherwise treated in a degrading manner." |
|
GERMANY |
Basic Law of the Federal Republic of Germany (1949) |
Article 102 states: "The death penalty is abolished." |
|
GUINEA-BISSAU |
Constitution of the Republic of Guinea-Bissau (1984) |
Article 36(1) states: "In the Republic of Guinea-Bissau in no circumstances shall there be the death penalty." Article 36 is included under Title II, "Fundamental Rights, Liberties, Guarantees and Duties". |
|
HAITI |
Constitution of the Republic of Haiti (1987) |
Article 20 states: "The death penalty is abolished with respect to all crimes." Article 20 is included under Title III, "Basic Rights and Duties of the Citizen". |
|
HONDURAS |
Constitution of the Republic of Honduras (1982) |
Article 66 states: "The death penalty is prohibited." Article 66 is included under Title III, "Declarations, Rights and Guarantees". |
|
ICELAND |
Constitution of the Republic of Iceland (1944, as amended in 1995) |
Article 69 states in part: "A law prescribing the death penalty must never be enacted." Article 69 is included in Title VI, which deals with human rights. |
|
LUXEMBOURG |
Constitution of the Grand Duchy of Luxembourg of 17 October 1868 (as amended on 29 April 1999) |
Article 18 states: "The death penalty cannot be established." Article 18 is included in Chapter II, "People of Luxembourg and their Rights". |
|
MACEDONIA (former Yugoslav Republic) |
Constitution of the Republic of Macedonia (1991) |
Article 10 states: "Human life is inviolable. The death penalty may not be imposed in the Republic of Macedonia for any reason." |
|
MARSHALL ISLANDS |
Constitution of the Republic of the Marshall Islands (1979) |
Section 6(1) states: "No crime under the law of the Republic of the Marshall Islands may be punishable by death." Section 6 is entitled "Cruel and Unusual Punishment". |
|
MICRONESIA (Federated States) |
Constitution of the Federated States of Micronesia (1980) |
Article IV, Section 9 states: "Capital punishment is prohibited." Article IV is entitled "Declaration of Rights". |
|
MONACO |
Constitution of the Principality of Monaco (1962) |
Article 20 states in part: "The death penalty is abolished." Article 20 is included under Title III, "Freedoms and Fundamental Rights". |
|
MOZAMBIQUE |
Constitution of the Republic of Mozambique (1990) |
Article 70 states: "1. All citizens shall have the right to life. All shall have the right to physical integrity and may not be subjected to torture or to cruel or inhuman treatment. 2. In the Republic of Mozambique there shall be no death penalty." |
|
NAMIBIA |
Constitution of the Republic of Namibia (1990) |
Article 6 states: "The right to life shall be respected and protected. No law may prescribe death as a competent sentence. No Court or Tribunal shall have the power to impose a sentence of death upon any person. No executions shall take place in Namibia." |
|
NEPAL |
Constitution of the Kingdom of Nepal (1990) |
Article 12(1) states: "(1) ...no law shall be made which provides for capital punishment." Article 12 is included under Part 3, "Fundamental Rights". |
|
NETHERLANDS |
Constitution of the Kingdom of the Netherlands (1983) |
Article 114 states: "Capital punishment may not be imposed." |
|
NICARAGUA |
Constitution of the Republic of Nicaragua (1987) |
Article 23 states: "The right to life is inviolable and inherent to the human person. In Nicaragua there is no death penalty." |
|
PANAMA |
Constitution of the Republic of Panama (1972) |
Article 30 states: "There is no death penalty...". Article 30 is included under Title III, "Individual and Social Rights and Duties". |
|
PARAGUAY |
Constitution of the Republic of Paraguay (1992) |
Article 4, "The Right to Life", states in part: "The death penalty is abolished." |
|
PORTUGAL |
Constitution of the Portuguese Republic (1976) |
Article 24 states: "1. Human life is inviolable. 2. In no case shall the death penalty be applied." |
|
ROMANIA |
Constitution of Romania (1991) |
Article 22(3) states: "Capital punishment is prohibited." Article 22 is entitled "The Right to Life and to Physical and Mental Well-being". |
|
SAO TOME AND PRINCIPE |
Constitution of the Democratic Republic of Sao Tomé and Príncipe (1990) |
Article 21, "Right to Life", states: "1. Human life is inviolable. 2. In no case shall there be the death penalty". |
|
SEYCHELLES |
Constitution of the Republic of Seychelles (1993) |
Article 15, dealing with the right to life, states in part: "(2) A law shall not provide for a sentence of death to be imposed by any court." |
|
SLOVAK REPUBLIC |
Constitution of the Slovak Republic of 3 September 1992 |
Article 15, dealing with the right to life, states: "... (3) The death penalty shall be inadmissable. ..." |
|
SLOVENIA |
Constitution of the Republic of Slovenia (1991) |
Article 17 states: "Human life is inviolable. There shall be no death penalty in Slovenia." |
|
SWEDEN |
Instrument of Government (1975) |
Article 4 states: "There shall be no capital punishment." Article 4 is included under Chapter 2, "Fundamental Rights and Freedoms". |
|
URUGUAY |
Constitution of the Oriental Republic of Uruguay (1966) |
Article 26 states in part: "The death penalty shall not be applied to anyone." Article 26 is included under Section II, "Rights, Duties and Guarantees". |
|
VENEZUELA |
Constitution of the Republic of Venezuela (1961) |
Article 58 states: "The right to life is inviolable. No law may establish the death penalty, nor may any authority apply it." |
Table 2. Constitutions which Restrict the Scope of the Death Penalty
|
Country |
Title of constitution |
Text |
|---|---|---|
|
ARGENTINA |
Constitution of the Argentine Nation (1994) |
Article 18 states in part: "The penalty of death for political offences, all kinds of torture, and flogging, are forever abolished." |
|
BRAZIL |
Constitution of the Federative Republic of Brazil (1988) |
Article 5, XLVII states in part: "There will be no penalties of: a) death, except in cases of declared war as defined in Article 84, XIX". Article 5, XLVII is included under Title II, "Fundamental Rights and Guarantees". |
|
CYPRUS |
Constitution of the Republic of Cyprus (1960) |
Article 7, dealing with the right to life, states in part: "(2) No person shall be deprived of his life except in the execution of a sentence of a competent court following his conviction of an offence for which this penalty is provided by law. A law may provide for such penalty only in cases of premeditated murder, high treason, piracy jure gentium and capital offences under military law." |
|
EL SALVADOR |
Constitution of the Republic of El Salvador (1983) |
Article 27 states in part: "The death penalty may be imposed only in cases provided by military laws during a state of international war." Article 27 is included under Title II, "Fundamental Rights and Guarantees of the Person". |
|
GREECE |
Constitution of Greece (1975) |
Article 7(3) states in part: "The death penalty shall not be imposed for political crimes, unless these are composite." Article 7 is included under Part II, "Individual and Social Rights". |
|
ITALY |
Constitution of the Republic of Italy of 27 December 1947 |
Article 27 states in part: "The death penalty is not admitted except in cases specified by military laws in time of war." Article 27 is included under Title I, Part One, "Rights and Duties of Private Citizens". |
|
MEXICO |
Constitution of the United States of Mexico (1917) |
Article 22 prohibits torture and specific cruel punishments and states: "The death penalty is... prohibited for political crimes and, in relation to other crimes, can only be imposed for treason during international war, parricide, murder that is committed treacherously, with premeditation or against a defenceless person, arson, kidnapping, banditry, piracy and grave military offences." |
|
PERU |
Constitution of the Republic of Peru (1993) |
Article 140 states: "The death penalty may only be applied for the crime of treason in time of war, and of terrorism, in accordance with national laws and international treaties to which Peru is party." |
|
SPAIN |
Spanish Constitution (1978) |
Article 15 states: "All have the right to life and physical and moral integrity and in no case may they be subjected to torture or inhuman or degrading punishment or treatment. The death penalty is abolished except in those cases which may be established by military penal law in times of war." |
Table 3. Grounds for Prohibiting or Restricting the Death Penalty
|
Country |
Prohibited or restricted? |
Human rights? |
Right to life? |
Right to phys. or mental integrity? |
|---|---|---|---|---|
|
ANDORRA |
Prohibited |
T |
|
|
|
ANGOLA |
Prohibited |
T |
T |
|
|
ARGENTINA |
Restricted |
T |
|
|
|
AUSTRIA |
Prohibited |
|
|
|
|
BRAZIL |
Restricted |
T |
|
|
|
CAMBODIA |
Prohibited |
T |
T |
T |
|
CAPE VERDE |
Prohibited |
T |
|
T |
|
COLOMBIA |
Prohibited |
T |
T |
|
|
COSTA RICA |
Prohibited |
T |
T |
|
|
CROATIA |
Prohibited |
T |
T |
|
|
CYPRUS |
Restricted |
T |
T |
|
|
CZECH REPUBLIC |
Prohibited |
T |
T |
|
|
DOMINICAN REP. |
Prohibited |
T |
T |
T |
|
ECUADOR |
Prohibited |
T |
T |
|
|
EL SALVADOR |
Restricted |
T |
|
|
|
FINLAND |
Prohibited |
T |
T |
T |
|
GERMANY |
Prohibited |
|
|
|
|
GREECE |
Restricted |
T |
|
|
|
GUINEA-BISSAU |
Prohibited |
T |
|
|
|
HAITI |
Prohibited |
T |
|
|
|
HONDURAS |
Prohibited |
T |
|
|
|
ICELAND |
Prohibited |
T |
|
|
|
ITALY |
Restricted |
T |
|
|
|
LUXEMBOURG |
Prohibited |
T |
|
|
|
MACEDONIA (former Yug. Rep.) |
Prohibited |
T |
T |
|
|
MARSHALL IS. |
Prohibited |
T |
|
T |
|
MEXICO |
Restricted |
T |
|
T |
|
MICRONESIA (F.S.) |
Prohibited |
T |
|
|
|
MONACO |
Prohibited |
T |
|
|
|
MOZAMBIQUE |
Prohibited |
T |
T |
T |
|
NAMIBIA |
Prohibited |
T |
T |
|
|
NEPAL |
Prohibited |
T |
|
|
|
NETHERLANDS |
Prohibited |
|
|
|
|
NICARAGUA |
Prohibited |
T |
T |
|
|
PANAMA |
Prohibited |
T |
|
|
|
PARAGUAY |
Prohibited |
T |
T |
|
|
PERU |
Restricted |
|
|
|
|
PORTUGAL |
Prohibited |
T |
T |
|
|
ROMANIA |
Prohibited |
T |
T |
T |
|
SAO TOME AND PRINCIPE |
Prohibited |
T |
T |
|
|
SEYCHELLES |
Prohibited |
T |
T |
|
|
SLOVAK REP. |
Prohibited |
T |
T |
|
|
SLOVENIA |
Prohibited |
T |
T |
|
|
SPAIN |
Restricted |
T |
T |
T |
|
SWEDEN |
Prohibited |
T |
|
|
|
URUGUAY |
Prohibited |
T |
|
|
|
VENEZUELA |
Prohibited |
T |
T |
|
Amnesty International AI Index: ACT50/05/99