1. Introduction
Twenty six to one ? that was the result of voting over the establishment of a European Day against the Death Penalty during the September working meeting of EU justice ministers. Poland was the only opponent. Political conflict over the establishment of the Day is a more complex problem, than some commentators make the public believe. I argue that the actions of the controversial Kaczy?ski government should, instead of a mere rejection of Poland?s standpoint, drag our attention towards matters less symbolic than an officially established holiday. In my opinion the intergovernmental battle-lines in this case have little to do with the real conflicts dormant under the surface of the European public discourse.
The first is most obviously the debate on capital punishment as such. Against the idealist wishes of the heads of states, the prohibition of death penalty is hardly a value that all European hold dear. In a number of states DP supporters are a solid majority, in others ? a considerable minority. The second problem, put forth by the Poles, is the formulation of a general ?right to life?, which calls all other forms of peace-time termination (abortion, euthanasia) into question.
All these issues are in turn directly linked to the problem of EU?s democratic deficit. Abstracting from the normative aspects of this dispute, it is clear that governments, heads of states, Commissioners and MEPs are reluctant to engage in any meaningful wider debate on these problems. They seem to believe that whatever happens on the European level is still insulated from the public, which gives the policy makers a silent ?permissive consensus?. This might be true of norms regarding the colour schemes of police cars, but not necessarily the matters of life and death. The paper attempts to be neutral on the question of the death penalty, but has a normative side arguing for the need to introduce more deliberation in the Union.
The aim of this paper is to analyse that conflict ?as if it were? a regular policy issue in the EU. I want to describe the standpoints of two governments: the United Kingdom, as an advocate of the Day, and Poland, as the opposing side.
The EU however is a multi-level polity, therefore the intergovernmental clashes do not necessarily have to reflect the structure of interests on lower levels. I intend to provide coverage of the domestic interests regarding the question of the Day, and, more importantly, the DP as such, in these two states. I want to show that there are some common standpoints on the issue, cross-cutting the nation-state borders.
2. The European Day against the Death Penalty ? a Political Clash
The ?World Day against Death Penalty? is held on October 10. every year since 2003, as an initiative of the World Coalition Against the Death Penalty. The idea to establish a strictly European Day was clearly spoken out during the German Presidency, and taken up by the Portuguese government, who was to preside in the European Council in the second half of 2007, when the Day would be held. On behalf of the European Commission, Vice-President Franco Frattini, Responsible for Justice, Freedom and Security, was the main advocate of the Joint Declaration of the EP and the Council of Ministers, proposed by the EC on 19. June 2007.
Frattini said that: ?By creating a European Day against the death penalty we are showing our resolve and commitment to not stop fighting this practice until it is abolished worldwide?. In the words of Benita Ferrero-Waldner: ?We Europeans are the number one advocate against the death penalty and for its universal abolition?. The EC?s press release headline read: ?Tireless champion for the abolition of the death penalty throughout the world, the EU proposes a European day against the death penalty?. As I will try to show in the coming sections, the Europeans, understood as the citizens of the EU, are not unanimous advocates against capital punishment, nor has the EU been a ?tireless champion? to abolish it for long.
Member-state delegations were supposed to agree on the proposed draft on September 6th. The proposal however was blocked by the Polish delegation at the first meeting, the veto was already signaled before, and despite the attempts to persuade the Poles, made by the Commissionaires, other delegates and the MEPs, that was the end of the Draft.
As a justification of their standpoint, the spokesman of the Polish delegation Andrzej Duda, claimed Europe ought to promote a day “dedicated to the protection of all human life” instead. The claim was anchored in a traditional Christian discourse, where all forms of human-inspired termination are wrong. What was clear from the comments, especially made by socialist MEPs and the Portuguese delegation, this was just an excuse, as the real reasons for the Polish veto was Kaczy?ski?s explicit support for capital punishment. Commentators also noted that the League of Polish Families, Kaczy?ski?s coalition party, was planning to reintroduce DP for pedophile rapists. What is more, the critics linked Polish veto with the upcoming parliamentary elections in the country, where the tough play on European arena and defending Christian or alternatively pro-death-penalty values would give Kaczy?ski?s Law and Justice points.
3. The Three Interests and a Disinterest
From this debate we can already differentiate the three positions (interests) that can be found in the EU. First, supported by the 26 states officials, the EC, EP and Council of Europe, is based on the human right to life understood in the narrow sense. Capital punishment is seen as unlawful and unjustifiable barbarism, and ?Europe? is said to be the main prophet of its abolition. Secondly, there is the Christian, traditional view, calling for the protection of all life, from conception until natural death. Third is the conservative (in the American sense ) standpoint, opposing the abolition of DP. This form of punishment is seen as effective in deterring most violent crimes, and just. Abortion and euthanasia are not seen as similar to capital punishment (as in the former view), but rather as equal to murder, and in some extreme opinions should also be punished by death.
Apart from the three clear ?interests?, we need to mention the fourth logically possible standpoint ? favoring death penalty, as well as the liberalization of abortion and euthanasia. I argue this is quite a common standpoint. It arises however, not from deeply held values or from ideology, but rather from superficial reasoning. I therefore call it a ?disinterest?, as opposed to the more conscious and better informed ?interests?. The support for DP in this group derives from the very basic need for justice and security, and the arguments about its deterring role are appealing. Abortion and euthanasia on the other hand can be seen as private matters ? in a way similar to the first interest group. I will argue that this ?disinterest? is the main pool of support for the DP in Europe, yet it is often evaded by the European politicians.
In the official EU policy discourse, only the first view is present. It avoids reference to abortion and euthanasia, either by omitting it or by denying any logical link. What the commentators noticed, but chose not to elaborate on, is the electoral gain Law and Justice could achieve by opposing the Day, and thereby becoming the only actor on the European arena representing the second and third viewpoints. The commentators, apart from Terry Davies, Secretary General of the CE, were reluctant to state that such electoral gain is possible, simply because there are many Europeans favoring capital punishment or the right to life in a broader sense.
4. The Domestic Interest Structure on Capital Punishment
In this section I will first briefly try to illustrate the structure of interests regarding capital punishment in Europe with some statistical data. I will then move to the analysis of two cases, where I will more closely look at the organization of interests and their reflection on the political arena.
Contrary to what is proclaimed by the EU officials, ?abolition of death penalty? is not a very central ?European value?. The Eurobarometer does not pose the question of being for or against DP. The pan-European data is very limited. As for the European law, Council of Europe’s “European Convention for the Protection of Human Rights and Fundamental Freedoms”, imposes the abolition of death penalty. These documents are neither central for the old members, nor conditions for new member?s accession. The Copenhagen Criteria do not mention the necessity of DP abolition.
The public is at least divided on the matter. In Finland, according to the Gallup Polls, one third of the nation supported death penalty in 2006. In France the support was higher ? 42%. In the UK, support has dropped in the recent years from some 60% to a still very high figure of 49% in 2005. It is noticed that support is much higher in the new member-states, notably Poland (67% in 2006, 63% in 2007), Czech Republic (57% in 2005) or Romania (Eastern European average is around 60%). The need for justice and security causes instances of mass popular support for the reintroduction of DP ? as did the tragic events in Belgium in 1996. 62% of Europeans believe that offenders, especially youths, would commit less crime if the punishments were tougher. 95% of respondents say penalties for child abuse should be tougher. These can be treated as (very weak) proxies of the deterring role most harsh penalties have and of the support for DP respectively.
4.1 Poland
Poland may well be the EU member-state with strongest DP support. Most violent cases of murder after 1989 took place between 1995 and 1997. In those years the support for DP was highest ? even 75% in 1997. This support is, I would argue, mostly emotional, and fits the fourth standpoint I enumerated ? the ?disinterest?. This can be proven by the attitudes towards abortion, not fitting the ?Christian? or ?conservative? interest patterns. In 1997 65% of Poles agreed that women should have the right to terminate, in 2005 the figure fell to 57%. This however still means that at least 20% of respondents are both in favour of DP and abortion.
Despite such strong support for DP, the representation of interest on the political scene hardly matches their structure in the society. Since 2004 three right-wing parties have advocated for the reinstitution of capital punishment. Most radical voices are usually raised by the conservative and ultra-liberal Union of Real Politics, traditionally receiving 2-8% support. Their arguments are the deterring role of DP and the primacy of the right to life, they are rooted in individual liberty and absolute responsibility of the individual for its actions. Second advocate is the nationalist League of Polish Families , with 12 % support in 2005, and marginal support in 2007. The party is divided between the Christian and the conservative standpoints, mostly speaking of DP for paedophiles. The last party in favour of DP is Law and Justice, which saw a place for capital punishment in its projected harsher penal code. Together the advocates of DP can count on 30-40% of votes, hardly matching the real support on that matter.
The mainstream press? comments on the Day controversy were emphasising the feeling of shame as Poland is once again treated as a ?freak? or a ?black sheep? in the EU family, not engaging in a substantive debate on the DP. Right-wing press chose either to emphasise the ?Christian? explanation of the Polish veto, or the ?conservative? hard-headedness in a clash with the nonsensual, socialist Europe.
4.2 United Kingdom
As already mentioned, the public support for DP in Britain is considerable, and this can be felt in the public discourse, mostly in conservative/Tory sources. Even very some moderate commentators were reluctant to dismiss the Polish veto as ?fundamentalism?, choosing instead to support the appealing logic behind the ?pro life? explanations of the veto. In that sense, the position of the euro-sceptical Polish leadership was welcomed with some understanding by the large euro-sceptical groups of Britons. The majority however took Straw?s side, and used the pan-European discourse against DP and avoiding putting ?a larger context of the right to life? on the agenda.
The Labour Party is clearly falling into the first interest ?box?, after all, it was with Tony Blair in charge that Britain finally banned the DP under all circumstances. This policy line is continued by Gordon Brown. With the Conservative Party the case is more complex. David Cameron, describing himself as ?modern compassionate conservative? has quite moderate views, not favouring the DP. There are however more radical voices in the party, with some members explicitly voicing their support for capital punishment. The leaders of Ulster Unionist Party and the Democratic Unionist Party in the parliament of Northern Ireland also favour reintroducing of DP.
5. Conclusion: Taking a D-Tour for D-Day in The Council of Europe
Despite the Polish veto, the Day was established and celebrated on October 10th. In order to achieve that, the EU governments turned to the Council of Europe, where on 26.09 the project was acclaimed by 26 of 47 states ? a majority sufficient to make it binding for other members. This turn of events was naturally strongly opposed by the Polish Foreign Ministry, Fotyga called the decision a conspiracy and said Poland would treat it as non-existent. One month later however, early election swept Law and Justice from government, and the new coalition soon declared it would support the Day. The process was concluded during the JHA Council meeting on 7.12 where all 27 member states signed the proposal, meaning that 10.10.2008 will be an official European Day Against the Death Penalty in all of the EU.
Although we can argue the Union has chosen the right thing to do, it failed to address in any way the problem of considerable civic support for the DP. Europe is therefore a global advocate of a cause which is internally not seen as unanimously ?European?. What is more, after the former Polish government has been shamed for differing, and since the new one is quite reasonably compliant, there is now no voice of dissent, no representation of the three standpoints alternative to the EU mainstream on the European arena. This incompatibility of interests and European policy-making can be treated as some proof of the democratic deficit in the EU. Secretary Davies? attitude and the fact, that at least to some extent these three viewpoints are present in the EP, can hopefully result in a real debate on the DP and the right to life as Europe would like it to be defined. It would be interesting to see a real moral argument in the European family, one that could lead to the Day Against the Death Penalty being a truly European Day.
Kacper Szulecki is a student of international relations and sociology at the Free University of Amsterdam and the Warsaw University.
