Marc Ancel was a magistrate and legal theorist, author of a doctrine of criminal policy called "The New Social Defence". It consists of rethinking the entire penal system on the defence of human rights, and no longer on the defence of society.

In 1957, for the first time, the Committee of Ministers of the Council of Europe created a European Committee on Crime Problems. Marc Ancel was named chairman. As soon as it was set up, this committee set up a sub-committee to deal exclusively with the "problem of the death penalty in European states", a subject which had never been examined before by the institution. Marc Ancel was appointed rapporteur. Thus, as early as 1957, the question of the death penalty began to be addressed within the Council of Europe. A questionnaire was sent by the Secretariat General to all member states, to which Spain, Finland, Monaco, Portugal and San Marino were added. Two additional questionnaires were drawn up and circulated, in January and July 1961. The conclusion report is the result of the analysis of the responses provided. It is the first comparative legal, sociological and criminological study on the subject. After a description of the legislation in each of the States, the subcommittee worked along several lines. Four different aspects were taken into account:

- The legislative perspective. Does the respondent country have capital punishment in its legislation?

- The judicial and administrative issue. If the consulted country is retentionist, what about the right to pardon? Conversely, if the country is abolitionist, what alternative punishment, if any, is proposed?

- The sociological and criminological configuration. This is done by reviewing crime statistics.

– Lex ferenda^[1] and criminal policy. Public opinion on the abolitionist issue is examined, and sociological realities are analysed.

The report provides a country-by-country typology of the use or non-use of the death penalty. In his analysis, Marc Ancel draws on his work on the "New Social Defence". He substitutes the neutralisation of the offender with his reintegration into society, whenever possible, because society is made for man and one cannot seriously claim to protect it if no effort is made to reform the guilty and bring them back to a normal life. For Marc Ancel, it is therefore necessary to reform whenever possible. His humanism is inspired by Christianity. He believes that man is perfectible, that redemption is possible and that there must be a reasonable place for hope. For this reason, the delinquent should not be considered as an irreducible enemy of society or a dangerous degenerate, but as an individual in conflict with it. Justice must judge the whole person. To do this, a "personality file" must be compiled, in order to know the offender and the environment in which he or she lives. The sanction imposed, as well as a punishment, consequently becomes an instrument of social rehabilitation. Marc Ancel says that he was greatly influenced by the Enlightenment and in particular by Beccaria, whom he considers to be the precursor of social defence: "In a society that claims to be humanist, the first right of the individual is the right to life, and society must guarantee it. The first duty of the state is therefore to refrain from killing. Indeed, the death penalty suppresses, eliminates, but in no way reforms. Moreover, miscarriages of justice are always possible and the death penalty is irreparable. Ancel advocated a multidisciplinary approach to the criminal phenomenon, in order to direct the social reaction towards the protection of the human being and the improvement of man, while guaranteeing his fundamental rights from a humanist perspective. And the first of these rights is nothing other than the right to life: the right not to be killed. To detach such an abolition-oriented expert as Marc Ancel is indicative of what was expected from the report, even if it was limited to a statistical study. His general conclusion is not neutral on the subject: "From this general survey, it is clear that, in the countries of the Council of Europe, the abolitionist States constitute the vast majority. Elsewhere, and with the exception of a few French legislative accidents, the death penalty is only maintained, and its scope is gradually being restricted. The mere examination of the facts confers on it, in these same European countries, the character of a historical survival, sometimes precarious, and apparently threatened.

Marie Bardiaux-Vaïente

[1] Lex ferenda: what the law should be, the desirable judgment.