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Report No. 35

Topic Number 9

Capital Punishment-Abolition in Europe, Australia and New Zealand

52. Capital Punishment-abolition in Europe and Australia.-

The move for reform of the law relating to capital punishment in Europe may be regarded as having started with Beccaria, who published his famous Essay on crimes and penalties in Italian in the latter half of the 18th century. His main argument was, that man had no right to dispose of a life which he had not granted to another, and that this right did not belong even to society as a whole. Death penalty amounted to a war declared by one man over the whole nation, and if the penalty was neither useful nor necessary, as he sought to prove, then it must be abolished.

"Every act of authority of one man over another, for which there is-not an absolute necessity, is tyrannical.1". When he wrote, the modes of execution which were prevalent in Europe were many and various, and the main effect of his writings was to humanise those modes2. The move for abolition gathered momentum by the efforts of de Sellon, a Swiss who pleaded before the Geneva Grand Council to set an example to Europe by abolishing death penalty. He also invited essays on the subject. The essays submitted in response to his invitation were numerous, of which those of Lucas (a future Inspector General of French Prisons) and of Lamartine deserve mention.

The former regarded abolition as the essential point of departure for any scheme of criminal reform, while the latter put this question "Must society and a criminal watch each other for ever to see which will be the first to cease to shed blood3?" Considerable literature was published in Italy, France and Sweden on the subject. In the French Constitution of 1948, death penalty was abolished for political cases, and in the French Criminal Code of 1832 the number of capital crimes was reduced and other reforms made. Reforms followed in some Swiss Cantons also.

1. Beccaria, quoted in Scott The history of Capital Punishment, (1950), p. xiv.

2. Joyce, Right to Life (1962).-pp. 70 and 71.

3. See Joyce Right to Life, (1962), p. 73.

53. The 19th century may perhaps be described as an era of great strides in the direction of abolition. The following quotation from Joyce1 gives a full picture of what took place in that century.

This movement continued steadily until the end of the century. Portugal, it may be surprising to discover, appears to have carried out no executions since 1843 and legally abolished Capital Punishment in 1867. This lead was followed by Saxiny in 1868, the Netherlands in 1870, Maine (U.S.A.) in 1887, Costa Rica in 1880, Italy and Guatemala in 1889, Brazil in 1890, Nicaragua in 1892 and Honduras in 1894.

The Swiss experience will receive specific mention later, but it can here be recorded in the general sequence that the death penalty was abolished in Neuchatel in 1854, Zurich in 1869, Tessin and Geneva in 1871, Basle in 1872 and Soleure in 1874. Moreover, by a declaration of principle in the revised Federal Constitution of 1874 (Article 65), the death penalty was abolished, except in military law in time of war. At the same time, it is to be noticed that, in countries still retaining the death penalty, proposals were frequently introduced for its abolition and it was, in practice, applied less and less.

For instance, while in Germany it was still retained in the penal code of 1871, the proportion of executions before the First World War was less than 1 per cent. of capital cases. In France, the President regularly reprieved those condemned and, for the first ten years of the present century, nearly 90 per cent. of sentences were commuted. Professor Jean Graven comments on these undoubted advances as follows: "It might seem that the question was almost closed and that the guillotine and the gallows would soon be relegated to the museum....The death penalty, even for the most atrocious murders, seemed to be retreating before the advance of civilisation".

The movement was also gaining ground in the Nordic countries, where there had been no executions for many years. The abolition of the penalty in Norway, where it had not been used for over a century, occurred in 1905, and was followed in Sweden in 1921, Denmark in 1930, Iceland in 1944 and Finland in 1949. Incidentally, there is no record of any condemned person having been executed in Finland since 1826, though the situation was radically changed, of course, during the course of Russo-Finish War in 1940. What happened in Norway, as a consequence of the Second World War, is reserved for comment below. In the case of Denmark, however, the death penalty was recently re¬introduced for treason.

It need hardly be stressed that the Second World War and its aftermath of "retribution" played havoc with these healthy trends. On that account, no conspectus of such developments, covering the experience of so many countries, could possibly be presented in any logical or consistent manner, so none is attempted. (The Table in the Appendix2 attempts a bird's eye view of the position at the present time, but is subject to explanations in the main text).

For instance, the Netherlands, gave up the penalty in 1870, but re-introduced it at the end of the Second World War; and, between 1945 and 1949, one hundred and twenty death sentences were pronounced. Belgium has carried out no non¬military death sentences since 1863, but the penalty has not been legally abolished by any Act of Parliament. Portugal, as already mentioned, renounced the death penalty officially in 1867 and Spain did the same in 1932.

But would any conscientious observer care to dogmatise on the practice of these two non-parliamentary dictatorships-especially in the latter case-in view of the serious inroads into personal freedom, associated with both these States, which have been the subject of frequent international concern or actual interventions?

In Italy-the birthplace and for many years the home of the modern science of criminology-no serious increase of crime was reported during the years from 1890 to 1926, when the death penalty was abolished. It was re-introduced by the Fascist regime, and abolition again decreed in 1944 and embodied in the Republican Constitution of 1947, where Article 27 declares that the purpose of penalties imposed by the courts shall be the re-education of the condemned person and that his treatment shall be humane. The death penalty must not be imposed, except under military law in time of war.

1. Joyce Right to Life, (1962), pp. 76 and 77.

2. The Appendix in Joyce's Book is not reproduced here.

54. Capital punishment in Russia.-

It would appear, that in Russia, death penalty was abolished in the mid-eighteenth century except for political offences, and was allowed as a rare measure in the penal codes of 1922 and 1926. It was abolished again in 1927 for common law offences except brigandage, but retained for grave political and military offences; it was replaced in 1947 during peace time by temporary internment. In 1950, traitors, spies and saboteurs were excepted from this leniency1.

1. Joyce Right to Life, (1962), pp. 79 and 80.

55. The broad policy on the subject can be ascertained from the Principles of Punishment1-2:

In accordance with the federal legislation enacted in 1958 and now in force, Capital Punishment-by means of shooting-is permitted as an exceptional measure of punishment, before being completely abolished, for the following crimes: treason to the country, spying, "diversion", terrorist activities, burglary, premeditated murder with aggravating circumstances, as these crimes are referred to in the provisions of the penal law of U.S.S.R. and the Republics of the Union which determine responsibility for premeditated murder, and, in war-time or in war-circumstances, also for other particularly grave crimes in cases specially provided for by the legislation of U.S.S.R. Persons who have not reached, before committing their crime, the age of 18 years, cannot be put to death, nor women who are with child during their crime or at the moment of the judgment or on the day of the execution.

1. See translation of section 22, Principles of Punishment etc. (1958) in Joyce Right to Life, (1962), p. 96.

2. See also Appendix relating to Death Penalty in Russia.

56. Position regarding Australia is this. Abolition took place in Queensland, (Australia) in 1962 (there being no executions since 1913), and in New South Wales in 1955 (there being no executions since 1939)1.

1. Joyce Right to Life, (1962), p. 78.

57. Abolition move in New Zealand.-

Capital punishment has been abolished in New Zealand, except for treason1. The abolition came after a "chequered history" of abolition and restoration2. "It has been enforced and suspended and abolished, and reinstated and suspended again-a weather cock varying with every change of Government since 1935.3".

1. See section 74(1) and 172, Crimes Act, 1961 (New Zealand).

2. Detailed discussion about New Zealand will be found in this Report elsewhere, under "Deterrent effect".

3. Mr. Hannan, Minister of Justice, in New Zealand H.R. Debates, dated 13th September, 1961, Col. 2206.

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