This is a translation of an interview with Professor Schachtschneider about the Lisbon Treaty and the European Constitution. The articles referred to are summed up in Lisbon Treaty: Reinstallment of the Death Penalty (Dutch language).
Article II-2, may be read here (in Dutch).
Here are translated excerpts from the interview:
The Lisbon Treaty will install the Death Penalty in Ireland, in case of demonstrations and “upheaval”- - - - - - - - -
Interview with Prof. Karl Albrecht Schachtschneider on the EU constitution.
Prof. Karl Albrecht Schachtschneider represents the objections to the EU constitution of the MEP Dr. Peter Gauweiler. He teaches civil law at the University of Erlangen-Nuremberg and is among the best authorities on European law, the European Constitution and the Lisbon Treaty. In 1992 he played a leading role in the objections to the Treaty of Maastricht. In 1998 he campaigned, along with the professors Hankel, Nölling, and Starbatty against the introduction of the euro. The following interview with Prof. Schachtschneider was held in Nuremberg by Gabriele Liebig and Alexander Hartmann.
Up until now the European Court of Justice has not one single time come to the conclusion that any act of law by the European Union violates fundamental rights. The judges of the European Court of Justice always approve of what is decided in the European Commission or the Council of the European Union. Moreover, the judges have been carefully selected by the governments for their inclusion. They are awarded a basic [monthly] fee of €17,000 euros which is at least three times of what a German professor receives. On top of that many additional expenses are covered. It is well-known that such high salaries serve to “buy” someone. That kind of assignment one wishes to occupy and keep. The judges may be re-elected again for a term of six years! This is not an independent judiciary! In the past fifty years, no single act has been nullified by the Court of Justice for violating the Constitution or the fundamental rights. Therefore we do not have to expect protection of our fundamental rights to come from the European Court of Justice.
Reintroduction of the Death Penalty?
Apropos fundamental rights: You mentioned at the beginning of the conversation that the right to life is in no way conclusively guaranteed by the Charter of Fundamental Rights of the EU Constitution, and that under certain circumstances the death penalty again is a possibility?
Schachtschneider: Yes, let’s talk about fundamental rights, for instance the right to life, and look at that in detail. In Art. II-62 VV it reads: “No person shall be sentenced to death, nobody shall be executed.” That seems to be in order.
But it is not the truth! The Constitutional Treaty stipulates that the explanation — the note to the fundamental rights — that has been taken from the Constitutional convent under Roman Herzog with the text of the European Convention on the protection of Human Rights and Fundamental Freedoms (ECHR), and about which there has been such a long debate, is just as binding as the text of the Constitution itself. In the notes the reality becomes visible!
The Charter of Fundamental Rights is aimed, at least concerning the classical fundamental rights, at the Convention [EVRM] of 1950. At that time there was no other option but to leave the possibility of the death penalty with the various Member States of the Council of Europe. Germany had just abolished capital punishment in 1949, but in France, Great Britain and many other countries the death penalty still existed, and there would never have been a declaration of human rights if we had to maintain a general abolition of the death penalty.
However, this explanation of 1950 — after long discussion, not by accident, but very deliberately — has been adopted as very important note in the Charter of Fundamental Rights. And these notes, these explanations, one must be able to read and understand!
To begin with it states that no one may be sentenced to death or be executed. But then there are the notes, including “A killing is not considered a breach of this article if it is caused by the use of force required to legally defend someone against extralegal violence” — which is correct, legitimate self-defense — “to arrest a person lawfully, or to hinder the flight of someone who has been lawfully deprived of liberty” — that in fact goes very far, but then here it is — “to legitimately crush a riot or a rebellion”. That is the situation in Leipzig, or a violent demonstration that is seen as a riot or insurrection.
That is not the full story, however. Further along in the note it states: “A State may provide in its law the death penalty for acts committed in time of war or with immediate threat of war. This penalty may only be applied in the cases that are provided by law and are in accordance with those provisions.”
Therefore the death penalty is an option in times of war or immediate threat of war.
Now one may argue that the death penalty in Germany is not in any given state law. Exactly, but if the European Union issues a ruling to create an implementing provision for “missions”, that is waging war in the context of a response to crisis situations — when for instance they are preparing for such a war, which will allow the death penalty — then it cannot be argued any longer that applying the death penalty contravenes the Charter of Fundamental Rights of the EU constitution. For indeed it is consistent with the notes in the same charter.
The Constitutional protection of life in case of war or immediate threat of war therefore no longer exists. Because it will concern European acts of law, and those may no longer be measured according to the German constitution — Art. 102 GG, “the death penalty is abolished” — but be measured according to the notes on the Charter of Fundamental Rights. This means that the death penalty is possible, and also will be installed. But I cannot blame anybody for not noticing this, if that person has not been dealing with public law and European law his whole life. Reading this piece — the EU Constitution — is pure masochism!