ABSTRACT
This article investigates the prima facie paradox o f the endorsement o f the death penalty inArt.2( 1) o f the European Convention on Human Rights, with the “abolition” o f the punishment provided by Protocol No.6 and Protocol No. 13. It will analyse the evolution o f the Council o f Europe ’s abolitionist discourse which led to this juxtaposition, and identify whether there are unified or heterogeneous approaches to the punishment by the Committee o f Ministers, the Parliamentary Assembly, and the judicial organs o f the Commission and Court. What emerges is a conflict between the radical expansion o f the boundaries o f human rights by the Assembly, with the Committee ’s demonstration that the shadow o f state sovereignty constantly attempts to thwart progress. Consequently, the Court has bowed to the need fo r Member State acceptance o f provisions fo r amendment o f Art.2(l) and has not applied any purposive application o f the “living instrument” doctrine. However, the gradual solidification o f the Council’s abolitionist position has produced the possibility o f legislative abolition through the Protocols, but the text o f Art.2(1) remains. So is the death penalty abolished or not? As contemporary practice within Member States affirms that it is, is textual amendment now a moot issue ?
