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BIICL: Death Penalty in

Commonwealth Africa International Standards

2004

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CONTENTS

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 3

HUMAN RIGHTS COMMITTEE GENERAL COMMENT 6 (ARTICLE 6) 8

HUMAN RIGHTS COMMITTEE GENERAL COMMENT 13 9

SECOND OPTIONAL PROTOCOL TO THE ICCPR 12

LUBUTO V. ZAMBIA 14

HRC COMMENTS ON USA STATE REPORT UNDER ICCPR 18

DEATH PENALTY SAFEGUARDS 22

REPORT OF THE SPECIAL RAPPORTEUR 2002 23

VIENNA CONVENTION ON CONSULAR RELATIONS 1963 (EXTRACT) 30

ACHPR - DEATH PENALTY MORATORIUM RESOLUTION 1999 31

EU POLICY ON THE DEATH PENALTY 32

EU DEMARCHE ON THE DEATH PENALTY 35

UN HUMAN RIGHTS COMMISSION RESOLUTION APRIL 2002 36

BANGALORE PRINCIPLES 39

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INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966

entry into force 23 March 1976, in accordance with Article 49 Preamble

The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that these rights derive from the inherent dignity of the human person,

Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,

Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant,

Agree upon the following articles:

PART I

Article 1 […]

PART II

Article 2 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to

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develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

Article 4 1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Article 5 1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.

2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.

PART III

Article 6 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

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6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Article 8 [Ban on slavery]

Article 9 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Article 10 1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;

(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

Article 11 […]

Article 12

[…] Article 13

[…] Article 14

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for

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reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Article 15 1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

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2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

[…] PART IV

Article 28 1. There shall be established a Human Rights Committee (hereafter referred to in the present Covenant as the Committee). It shall consist of eighteen members and shall carry out the functions hereinafter provided.

2. The Committee shall be composed of nationals of the States Parties to the present Covenant who shall be persons of high moral character and recognized competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience.

3. The members of the Committee shall be elected and shall serve in their personal capacity…

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HUMAN RIGHTS COMMITTEE GENERAL COMMENT 6 (ARTICLE 6)

U.N. Doc. HRI\GEN\1\Rev.1 at 6 (1994) 1. The right to life enunciated in article 6 of the Covenant has been dealt with in all State reports. It is the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation (art. 4). However, the Committee has noted that quite often the information given concerning article 6 was limited to only one or other aspect of this right. It is a right which should not be interpreted narrowly.

2. The Committee observes that war and other acts of mass violence continue to be a scourge of humanity and take the lives of thousands of innocent human beings every year. Under the Charter of the United Nations the threat or use of force by any State against another State, except in exercise of the inherent right of self-defence, is already prohibited. The Committee considers that States have the supreme duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life. Every effort they make to avert the danger of war, especially thermonuclear war, and to strengthen international peace and security would constitute the most important condition and guarantee for the safeguarding of the right to life. In this respect, the Committee notes, in particular, a connection between article 6 and article 20, which states that the law shall prohibit any propaganda for war (para. 1) or incitement to violence (para. 2) as therein described.

3. The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6 (1) is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.

4. States parties should also take specific and effective measures to prevent the disappearance of individuals, something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life. Furthermore, States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life.

5. Moreover, the Committee has noted that the right to life has been too often narrowly interpreted. The expression "inherent right to life" cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.

6. While it follows from article 6 (2) to (6) that States parties are not obliged to abolish the death penalty totally they are obliged to limit its use and, in particular, to abolish it for other than the "most serious crimes". Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the "most serious crimes". The article also refers generally to abolition in terms which strongly suggest (paras. 2 (2) and (6)) that abolition is desirable. The Committee concludes that all measures of abolition should be considered as progress in the enjoyment of the right to life within the meaning of article 40, and should as such be reported to the Committee. The Committee notes that a number of States have already abolished the death penalty or suspended its application. Nevertheless, States' reports show that progress made towards abolishing or limiting the application of the death penalty is quite inadequate.

7. The Committee is of the opinion that the expression "most serious crimes" must be read restrictively to mean that the death penalty should be a quite exceptional measure. It also follows from the express terms of article 6 that it can only be imposed in accordance with the law in force at the time of the commission of the crime and not contrary to the Covenant. The procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal. These rights are applicable in addition to the particular right to seek pardon or commutation of the sentence.

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HUMAN RIGHTS COMMITTEE GENERAL COMMENT 13 (ARTICLE 14)

Equality before the courts and

the right to a fair and public hearing by an independent court established by law 13/04/84

1. The Committee notes that article 14 of the Covenant is of a complex nature and that different aspects of its provisions will need specific comments. All of these provisions are aimed at ensuring the proper administration of justice, and to this end uphold a series of individual rights such as equality before the courts and tribunals and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. Not all reports provided details on the legislative or other measures adopted specifically to implement each of the provisions of article 14. 2. In general, the reports of States parties fail to recognize that article 14 applies not only to procedures for the determination of criminal charges against individuals but also to procedures to determine their rights and obligations in a suit at law. Laws and practices dealing with these matters vary widely from State to State. This diversity makes it all the more necessary for States parties to provide all relevant information and to explain in greater detail how the concepts of "criminal charge" and "rights and obligations in a suit at law" are interpreted in relation to their respective legal systems. 3. The Committee would find it useful if, in their future reports, States parties could provide more detailed information on the steps taken to ensure that equality before the courts, including equal access to courts, fair and public hearings and competence, impartiality and independence of the judiciary are established by law and guaranteed in practice. In particular, States parties should specify the relevant constitutional and legislative texts which provide for the establishment of the courts and ensure that they are independent, impartial and competent, in particular with regard to the manner in which judges are appointed, the qualifications for appointment, and the duration of their terms of office; the condition governing promotion, transfer and cessation of their functions and the actual independence of the judiciary from the executive branch and the legislative. 4. The provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized. The Committee notes the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14. The Committee has noted a serious lack of information in this regard in the reports of some States parties whose judicial institutions include such courts for the trying of civilians. In some countries such military and special courts do not afford the strict guarantees of the proper administration of justice in accordance with the requirements of article 14 which are essential for the effective protection of human rights. If States parties decide in circumstances of a public emergency as contemplated by article 4 to derogate from normal procedures required under article 14, they should ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation, and respect the other conditions in paragraph 1 of article 14. 5. The second sentence of article 14, paragraph 1, provides that "everyone shall be entitled to a fair and public hearing". Paragraph 3 of the article elaborates on the requirements of a "fair hearing" in regard to the determination of criminal charges. However, the requirements of paragraph 3 are minimum guarantees, the observance of which is not always sufficient to ensure the fairness of a hearing as required by paragraph 1. 6. The publicity of hearings is an important safeguard in the interest of the individual and of society at large. At the same time article 14, paragraph 1, acknowledges that courts have the power to exclude all or part of the public for reasons spelt out in that paragraph. It should be noted that, apart from such

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exceptional circumstances, the Committee considers that a hearing must be open to the public in general, including members of the press, and must not, for instance, be limited only to a particular category of persons. It should be noted that, even in cases in which the public is excluded from the trial, the judgement must, with certain strictly defined exceptions, be made public. 7. The Committee has noted a lack of information regarding article 14, paragraph 2 and, in some cases, has even observed that the presumption of innocence, which is fundamental to the protection of human rights, is expressed in very ambiguous terms or entails conditions which render it ineffective. By reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt. Further, the presumption of innocence implies a right to be treated in accordance with this principle. It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial. 8. Among the minimum guarantees in criminal proceedings prescribed by paragraph 3, the first concerns the right of everyone to be informed in a language which he understands of the charge against him (subpara. (a)). The Committee notes that State reports often do not explain how this right is respected and ensured. Article 14 (3) (a) applies to all cases of criminal charges, including those of persons not in detention. The Committee notes further that the right to be informed of the charge "promptly" requires that information is given in the manner described as soon as the charge is first made by a competent authority. In the opinion of the Committee this right must arise when in the course of an investigation a court or an authority of the prosecution decides to take procedural steps against a person suspected of a crime or publicly names him as such. The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally or in writing, provided that the information indicates both the law and the alleged facts on which it is based. 9. Subparagraph 3 (b) provides that the accused must have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing. What is "adequate time" depends on the circumstances of each case, but the facilities must include access to documents and other evidence which the accused requires to prepare his case, as well as the opportunity to engage and communicate with counsel. When the accused does not want to defend himself in person or request a person or an association of his choice, he should be able to have recourse to a lawyer. Furthermore, this subparagraph requires counsel to communicate with the accused in conditions giving full respect for the confidentiality of their communications. Lawyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgement without any restrictions, influences, pressures or undue interference from any quarter. 10. Subparagraph 3 (c) provides that the accused shall be tried without undue delay. This guarantee relates not only to the time by which a trial should commence, but also the time by which it should end and judgement be rendered; all stages must take place "without undue delay". To make this right effective, a procedure must be available in order to ensure that the trial will proceed "without undue delay", both in first instance and on appeal. 11. Not all reports have dealt with all aspects of the right of defence as defined in subparagraph 3 (d). The Committee has not always received sufficient information concerning the protection of the right of the accused to be present during the determination of any charge against him nor how the legal system assures his right either to defend himself in person or to be assisted by counsel of his own choosing, or what arrangements are made if a person does not have sufficient means to pay for legal assistance. The accused or his lawyer must have the right to act diligently and fearlessly in pursuing all available defences and the right to challenge the conduct of the case if they believe it to be unfair. When exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defence is all the more necessary. 12. Subparagraph 3 (e) states that the accused shall be entitled to examine or have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. This provision is designed to guarantee to the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution.

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13. Subparagraph 3 (f) provides that if the accused cannot understand or speak the language used in court he is entitled to the assistance of an interpreter free of any charge. This right is independent of the outcome of the proceedings and applies to aliens as well as to nationals. It is of basic importance in cases in which ignorance of the language used by a court or difficulty in understanding may constitute a major obstacle to the right of defence. 14. Subparagraph 3 (g) provides that the accused may not be compelled to testify against himself or to confess guilt. In considering this safeguard the provisions of article 7 and article 10, paragraph 1, should be borne in mind. In order to compel the accused to confess or to testify against himself, frequently methods which violate these provisions are used. The law should require that evidence provided by means of such methods or any other form of compulsion is wholly unacceptable. 15. In order to safeguard the rights of the accused under paragraphs 1 and 3 of article 14, judges should have authority to consider any allegations made of violations of the rights of the accused during any stage of the prosecution. 16. Article 14, paragraph 4, provides that in the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. Not many reports have furnished sufficient information concerning such relevant matters as the minimum age at which a juvenile may be charged with a criminal offence, the maximum age at which a person is still considered to be a juvenile, the existence of special courts and procedures, the laws governing procedures against juveniles and how all these special arrangements for juveniles take account of "the desirability of promoting their rehabilitation". Juveniles are to enjoy at least the same guarantees and protection as are accorded to adults under article 14. 17. Article 14, paragraph 5, provides that everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. Particular attention is drawn to the other language versions of the word "crime" ("infraction", "delito", "prestuplenie") which show that the guarantee is not confined only to the most serious offences. In this connection, not enough information has been provided concerning the procedures of appeal, in particular the access to and the powers of reviewing tribunals, what requirements must be satisfied to appeal against a judgement, and the way in which the procedures before review tribunals take account of the fair and public hearing requirements of paragraph 1 of article 14. 18. Article 14, paragraph 6, provides for compensation according to law in certain cases of a miscarriage of justice as described therein. It seems from many State reports that this right is often not observed or insufficiently guaranteed by domestic legislation. States should, where necessary, supplement their legislation in this area in order to bring it into line with the provisions of the Covenant. 19. In considering State reports differing views have often been expressed as to the scope of paragraph 7 of article 14. Some States parties have even felt the need to make reservations in relation to procedures for the resumption of criminal cases. It seems to the Committee that most States parties make a clear distinction between a resumption of a trial justified by exceptional circumstances and a re-trial prohibited pursuant to the principle of ne bis in idem as contained in paragraph 7. This understanding of the meaning of ne bis in idem may encourage States parties to reconsider their reservations to article 14, paragraph 7.

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SECOND OPTIONAL PROTOCOL TO THE ICCPR aiming at the abolition of the death penalty

Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989 The States Parties to the present Protocol,

Believing that abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights, Recalling article 3 of the Universal Declaration of Human Rights, adopted on 10 December 1948, and article 6 of the International Covenant on Civil and Political Rights, adopted on 16 December 1966, Noting that article 6 of the International Covenant on Civil and Political Rights refers to abolition of the death penalty in terms that strongly suggest that abolition is desirable, Convinced that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life, Desirous to undertake hereby an international commitment to abolish the death penalty, Have agreed as follows:

Article 1 1. No one within the jurisdiction of a State Party to the present Protocol shall be executed. 2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.

Article 2 1. No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime. 2. The State Party making such a reservation shall at the time of ratification or accession communicate to the Secretary-General of the United Nations the relevant provisions of its national legislation applicable during wartime. 3. The State Party having made such a reservation shall notify the Secretary-General of the United Nations of any beginning or ending of a state of war applicable to its territory.

Article 3 The States Parties to the present Protocol shall include in the reports they submit to the Human Rights Committee, in accordance with article 40 of the Covenant, information on the measures that they have adopted to give effect to the present Protocol.

Article 4 With respect to the States Parties to the Covenant that have made a declaration under article 41, the competence of the Human Rights Committee to receive and consider communications when a State Party claims that another State Party is not fulfilling its obligations shall extend to the provisions of the present Protocol, unless the State Party concerned has made a statement to the contrary at the moment of ratification or accession.

Article 5 With respect to the States Parties to the first Optional Protocol to the International Covenant on Civil and Political Rights adopted on 16 December 1966, the competence of the Human Rights Committee to receive and consider communications from individuals subject to its jurisdiction shall extend to the provisions of the present Protocol, unless the State Party concerned has made a statement to the contrary at the moment of ratification or accession.

Article 6 1. The provisions of the present Protocol shall apply as additional provisions to the Covenant. 2. Without prejudice to the possibility of a reservation under article 2 of the present Protocol, the right guaranteed in article 1, paragraph 1, of the present Protocol shall not be subject to any derogation under article 4 of the Covenant.

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Article 7 1. The present Protocol is open for signature by any State that has signed the Covenant. 2. The present Protocol is subject to ratification by any State that has ratified the Covenant or acceded to it. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. 3. The present Protocol shall be open to accession by any State that has ratified the Covenant or acceded to it. 4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. 5. The Secretary-General of the United Nations shall inform all States that have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession.

Article 8 1. The present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or accession. 2. For each State ratifying the present Protocol or acceding to it after the deposit of the tenth instrument of ratification or accession, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or accession.

Article 9 The provisions of the present Protocol shall extend to all parts of federal States without any limitations or exceptions.

Article 10 The Secretary-General of the United Nations shall inform all States referred to in article 48, paragraph 1, of the Covenant of the following particulars: (a) Reservations, communications and notifications under article 2 of the present Protocol; (b) Statements made under articles 4 or 5 of the present Protocol; (c) Signatures, ratifications and accessions under article 7 of the present Protocol: (d) The date of the entry into force of the present Protocol under article 8 thereof.

Article 11 1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States referred to in article 48 of the Covenant.

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LUBUTO V. ZAMBIA

Communication No. 390/1990, U.N. Doc. CCPR/C/55/D/390/1990/Rev.1 (1995). Submitted by: Bernard Lubuto Victim: The author State party: Zambia Date of communication: 1 January 1990 (initial submission) Date of decision on admissibility: 30 June 1994 The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights, Meeting on 31 October 1995, Having concluded its consideration of communication No. 390/1990, submitted to the Human Rights Committee by Mr. Bernard Lubuto under the Optional Protocol to the International Covenant on Civil and Political Rights, Having taken into account all written information made available to it by the author of the communication and the State party, Adopts its Views under article 5, paragraph 4, of the Optional Protocol. 1. The author of the communication is Bernard Lubuto, a Zambian citizen, currently awaiting execution at the Maximum Security Prison in Kabwe, Zambia. The facts as presented by the author: 2.1 The author was sentenced to death on 4 August 1983 for aggravated robbery, committed on 5 February 1980. On 10 February 1988, the Supreme Court of Zambia dismissed his appeal. 2.2 The evidence led by the prosecution during the trial was that, on 5 February 1980, the author and two co-accused robbed a certain Marcel Joseph Mortier of a motor vehicle (a Datsun vanette). One of the co-accused held Mr. Mortier at gun-point, while stepping into his car. The author and the other co-accused were standing nearby in the bushes. The man with the gun fired shots at one of Mr. Mortier's labourers, who had been in the car and tried to run away from the spot. The man then drove off with the car, with Mr. Mortier still in it. Mr. Mortier then threw himself out of the vehicle and fell on the ground. Gunshots were fired at him, but did not hit him. The author was later identified at an identification parade and the prosecution produced a statement signed by the author, in which he admits his involvement in the robbery. 2.3 The author testified during the trial that he had been arrested by the police in the evening of 4 February 1980, after a fight in a tavern. He was kept in the police station overnight; in the morning of 5 February, when he was about to be released, he was told that a robbery had taken place. He was taken to an office, where one of Mr. Mortier's labourers said that he answered the description of the robber. The author was then returned to the cells, but kept denying any involvement in the robbery. On 7 February 1980, he participated in an identification parade and was identified as one of the robbers by the labourer whom he had met earlier at the police station. 2.4 The author's testimony was rejected by the Court on the basis of the entries in the police register, which showed inter alia that the author was arrested late in the evening of 5 February 1980. The complaint: 3.1 The author claims that the trial against him was unfair, since the judge accepted all evidence against him, although a careful examination would have shown discrepancies in the statements made by the witnesses. He further claims that his legal aid lawyer advised him to plead guilty and that, when he refused, the lawyer failed to cross-examine the witnesses. The author claims that the death sentence imposed on him is disproportionate, since no one was killed or wounded during the robbery. 3.2 The author claims that he was tortured by the police to force him to give a statement. He alleges that he was beaten with a hose pipe and cable wires, that sticks were put between his fingers and that his fingers were then hit on the table, and that a gun was tied with a string to his penis and that he was then forced to stand up and walk. The allegations were produced at the trial, but the judge considered, on the basis of the evidence, that the author's statement to the police was given freely and voluntarily.

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3.3 Although the author does not invoke the provisions of the Covenant, it appears from the allegations and the facts which he submitted that he claims to be a victim of a violation by Zambia of articles 6, 7 and 14 of the Covenant. The Committee's admissibility decision: 4.1 During its 51st session, the Committee considered the admissibility of the communication. It noted with concern the lack of cooperation from the State party, which had not submitted any observations on admissibility. 4.2 The Committee considered inadmissible the author's claims concerning the conduct of the trial. It recalled that it is, in principle, not for the Committee to evaluate facts and evidence in a particular case and it found that the trial transcript did not support the author's claims. In particular, it appeared from the trial transcript that author's counsel did in fact cross-examine the witnesses against the author. 4.3 The Committee considered that the length of the proceedings against the author might raise issues under article 14, paragraph 3(c), and, as regards the appeal, article 14, paragraph 5, of the Covenant. The Committee further considered that the author's claim that the imposition of the death sentence was disproportionate, since no one was killed or wounded during the robbery, might raise issues under article 6, paragraph 2, of the Covenant, and that his claim that he was tortured by the police to force him to give a statement might raise issues under article 7 of the Covenant which should be examined on the merits. 4.4 Consequently, on 30 June 1994, the Human Rights Committee declared the communication admissible in so far as it appeared to raise issues under articles 6, 7 and 14, paragraphs 3(c) and 5, of the Covenant. The State party was requested, under rule 86 of the Committee's rules of procedure, not to carry out the death sentence against the author while his communication was under consideration by the Committee. The State party's submission on the merits and author's comments thereon: 5.1 By submission of 29 December 1994, the State party acknowledges that the proceedings in Mr. Lubuto's case took rather long. The State party requests the Committee to take into consideration its situation as a developing country and the problems it encounters in the administration of justice. It is explained that the instant case is not an isolated one and that appeals in both civil and criminal cases take considerable time before they are disposed of by the courts. According to the State party, this is due to the lack of administrative support available to the judiciary. Judges have to write out every word verbatim during the hearings, because of the absence of transcribers. These records are later typed out and have to be proofread by the judges, causing inordinate delays. The State party also refers to the costs involved in preparing the court documents. 5.2 The State party further points out that crime has increased and the number of cases to be decided by the courts have multiplied. Due to the bad economic situation in the country, it has not been possible to ensure equipment and services in order to expedite the disposal of cases. The State party submits that it is trying to improve the situation, and that it has recently acquired nine computers and that it expects to get 40 more. 5.3 The State party concludes that the delays suffered by the author in the determination of his case are inevitable due to the situation as explained above. The State party further submits that there has been no violation of article 14, paragraph 5, in the instant case, since the author's appeal was heard by the Supreme Court, be it with delay. 5.4 As regards the author's claim that the imposition of the death sentence was disproportionate since no one was killed or wounded during the robbery, the State party submits that the author's conviction was in accordance with Zambian law. The State party explains that armed robberies are prevalent in Zambia and that victims go through a traumatic experience. For this reason, the State party sees aggravated robbery involving the use of a fire arm as a serious offence, whether or not a person is injured or killed. Finally, the State party submits that the author's sentence was pronounced by the competent courts. 5.5 Furthermore, the State party points out that under articles 59 and 60 of the Constitution, the President of the Republic of Zambia can exercise the prerogative of mercy. The author's case has been submitted and a decision is awaited. The State party further states that the delay in the hearing of the appeal and the fact that no one was injured in the attack are taken into account by the Advisory Committee on the exercise of the Prerogative of Mercy.

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5.6 With regard to the author's claim that he was tortured by the police in order to force him to give a statement, the State party submits that torture is prohibited under Zambian law. Any victim of torture by the police can seek redress under both the criminal and civil legal systems. In this case, the author did not make use of any of these possibilities, and the State party suggests that, had the author's allegations been true, his counsel at the trial would have certainly advised him to do so. 5.7 The State party further explains that, if an accused raises during trial that he was tortured by the police in order to extract a confession, the Court is obliged to conduct a "trial within a trial" to determine whether the confession was given voluntarily or not. In the author's case, such a trial within a trial was held, but it appeared from the testimonies given that the accused claimed that they were merely ordered to sign a statement without having made a confession. The Court then continued with the main trial, and the question of whether the author made a statement or not was decided upon the basis of all the evidence at the end of the trial. It appears from the trial transcript that the judge concluded that the author had not been assaulted. He based his conclusion on the fact that the investigating magistrate, before whom the author and his co-accused appeared on 8 February 1980, had not recorded any injuries or marks of beating nor had the author complained to him about maltreatment; he further took into account discrepancies in the author's testimony as well as evidence led by the police officers that the accused had been cooperative. There was no record of the author having been medically treated for injuries which might have been caused by maltreatment. 5.8 Finally, the State party confirms that, pursuant to the Committee's request, the appropriate authorities have been instructed not to carry out the death sentence against the author while his case is before the Committee. 6. In his comments on the State party's submission, the author explains that he first appeared before a judge on 4 July 1981, and that the trial was then adjourned several times because the prosecution was not ready. At the end of July 1981, the case was transferred to another judge, who did not proceed with it, and then only on 22 September 1982, again before a different judge, the trial actually started. Issues and proceedings before the Committee: 7.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol. 7.2 The Committee notes that the author was convicted and sentenced to death under a law that provides for the imposition of the death penalty for aggravated robbery in which firearms are used. The issue that must accordingly be decided is whether the sentence in the instant case is compatible with article 6, paragraph 2, of the Covenant, which allows for the imposition of the death penalty only "for the most serious crimes". Considering that in this case use of firearms did not produce the death or wounding of any person and that the court could not under the law take these elements into account in imposing sentence, the Committee is of the view that the mandatory imposition of the death sentence under these circumstances violates article 6, paragraph 2, of the Covenant. 7.3 The Committee has noted the State party's explanations concerning the delay in the trial proceedings against the author. The Committee acknowledges the difficult economic situation of the State party, but wishes to emphasize that the rights set forth in the Covenant constitute minimum standards which all States parties have agreed to observe. Article 14, paragraph 3(c), states that all accused shall be entitled to be tried without delay, and this requirement applies equally to the right of review of conviction and sentence guaranteed by article 14, paragraph 5. The Committee considers that the period of eight years between the author's arrest in February 1980 and the final decision of the Supreme Court, dismissing his appeal, in February 1988, is incompatible with the requirements of article 14, paragraph 3(c). 7.4 As regards the author's claim that he was heavily beaten and tortured upon arrest, the Committee notes that this allegation was before the judge who rejected it on the basis of the evidence. The Committee considers that the information before it is not sufficient to establish a violation of article 7 in the author's case. 8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of articles 6, paragraph 2, and 14, paragraph 3(c), of the International Covenant on Civil and Political Rights. 9. The Committee is of the view that Mr. Lubuto is entitled, under article 2, paragraph 3(a), of the Covenant to an appropriate and effective remedy, entailing a commutation of sentence. The State

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party is under an obligation to take appropriate measures to ensure that similar violations do not occur in the future. 10. Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's Views.

APPENDIX Individual opinion by Mr. Nisuke Ando, member of the Human Rights Committee,

with respect to the Committee's Views adopted on 31 October 1995 I do not oppose the Committee's Views in the present case. However, with respect to the statement in the Views that "use of firearms did not produce the death or wounding of any person", I would like to add the following: Certain categories of acts are classified as "crimes" because they create a grave danger which may result in death or irreparable harm to many and unspecified persons. Such crimes include bombing of busy quarters, destruction of reservoirs, poisoning of drinking water, gassing in subway stations and probably espionage in war-time. In my view, the imposition of the severest punishment, including death penalty where applicable, could be justified against these crimes, even if they do not result for one reason or another in the death of or injury to any person. Nisuke Ando

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HRC COMMENTS ON USA STATE REPORT UNDER ICCPR

Distr. GENERAL CCPR/C/79/Add.50; A/50/40,paras.266-304 3 October 1995 Original: ENGLISH

Concluding Observations of the Human Rights Committee : United States of America. 03/10/95. CCPR/C/79/Add.50; A/50/40,paras.266-304. (Concluding Observations/Comments)

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT

Comments of the Human Rights Committee

United States of America

266. The Committee considered the initial report of the United States of America (CCPR/C/81/Add.4 and HRI/CORE/1/Add.49) at its 1401st, 1402nd, 1405th and 1406th meetings, held on 29 and 31 March 1995 (CCPR/C/SR.1401-1402 and SR.1405-1406), and adopted the following comments:

1. Introduction

267. The Committee expresses its appreciation at the high quality of the report submitted by the State party, which was detailed, informative and drafted in accordance with the guidelines. The Committee regrets, however, that, while containing comprehensive information on the laws and regulations giving effect to the rights provided in the Covenant at the federal level, the report contained few references to the implementation of Covenant rights at the state level. 268. The Committee appreciates the participation of a high-level delegation which included a substantial number of experts in various fields relating to the protection of human rights in the country. The detailed information provided by the delegation in its introduction of the report, as well as the comprehensive and well-structured replies provided to questions raised by members, contributed to making the dialogue extremely constructive and fruitful. 269. The Committee notes with appreciation that the Government gave publicity to its report, thus enabling non-governmental organizations to become aware of its contents and to make known their particular concerns. In addition, a number of representatives of these organizations were present during the Committee's consideration of the report.

2. Factors and difficulties affecting the implementation of the Covenant 270. The Committee notes that, despite the existence of laws outlawing discrimination, there persist within society discriminatory attitudes and prejudices based on race or gender. Furthermore, the effects of past discriminations in society have not yet been fully eradicated. This makes it difficult to ensure the full enjoyment of the rights provided for under the Covenant to everyone within the State party's jurisdiction. The rise in crime and violence also affects the enjoyment of the rights provided for in the Covenant. 271. The Committee also notes that under the federal system prevailing in the United States, the states of the union retain extensive jurisdiction over the application of criminal and family law in particular. This factor, coupled with the absence of formal mechanisms between the federal and state levels to ensure appropriate implementation of the Covenant rights by legislative or other measures may lead to a somewhat unsatisfactory application of the Covenant throughout the country.

3. Positive aspects

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272. The Committee recognizes the existence of effective protection of human rights available to individuals under the Bill of Rights and federal laws. The Committee notes with satisfaction the rich tradition and the constitutional framework for the protection of human rights and freedoms in the United States. 273. The Committee notes with satisfaction that the United States has recently ratified or acceded to some international human rights instruments, including the Covenant, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Elimination of All Forms of Racial Discrimination. These ratifications reflect a welcome trend towards acceptance of international scrutiny, supervision and control of the application of universal human rights norms at the domestic level. 274. The Committee welcomes the efforts of the Federal Government to take measures at the legislative, judicial and administrative levels to ensure that the states of the union provide human rights and fundamental freedoms. It further appreciates the expression of readiness by the Government to take such necessary further measures to ensure that the states of the union implement the rights guaranteed by the Covenant. 275. The Committee notes with satisfaction that in the first statement of understanding made at the time of ratification the principle of non-discrimination is construed by the Government as not permitting distinctions which would not be legitimate under the Covenant. 276. The Committee takes note of the position expressed by the delegation that, notwithstanding the non-self-executing declaration of the United States, American courts are not prevented from seeking guidance from the Covenant in interpreting American law. 277. The Committee further notes with satisfaction the assurances of the Government that its declaration regarding the federal system is not a reservation and is not intended to affect the international obligations of the United States.

4. Principal subjects of concern

278. The Committee has taken note of the concerns addressed by the delegation in writing to its Chairman about the Committee's General Comment No. 24 (52) on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto (CCPR/C/21/Rev.1/Add.6). Attention is drawn to the observations made by the Chairman of the Committee at the 1406th meeting, on 31 March 1995 (CCPR/C/SR.1406). 279. The Committee regrets the extent of the State party's reservations, declarations and understandings to the Covenant. It believes that, taken together, they intended to ensure that the United States has accepted only what is already the law of the United States. The Committee is also particularly concerned at reservations to article 6, paragraph 5, and article 7 of the Covenant, which it believes to be incompatible with the object and purpose of the Covenant. 280. The Committee regrets that members of the judiciary at the federal, state and local levels have not been fully made aware of the obligations undertaken by the State party under the Covenant, and that judicial continuing education programmes do not include knowledge of the Covenant and discussion on its implementation. Whether or not courts of the United States eventually declare the Covenant to be non-self-executing, information about its provisions should be provided to the judiciary. 281. The Committee is concerned about the excessive number of offences punishable by the death penalty in a number of states, the number of death sentences handed down by courts, and the long stay on death row which, in specific instances, may amount to a breach of article 7 of the Covenant. It deplores the recent expansion of the death penalty under federal law and the re-establishment of the death penalty in certain states. It also deplores provisions in the legislation of a number of states which allow the death penalty to be pronounced for crimes committed by persons under 18 and the actual instances where such sentences have been pronounced and executed. It also regrets that, in some cases, there appears to have been lack of protection from the death penalty of those mentally retarded. 282. The Committee is concerned at the reportedly large number of persons killed, wounded or subjected to ill-treatment by members of the police force in the purported discharge of their duties. It also regrets the easy availability of firearms to the public and the fact that federal and state legislation is not stringent enough in that connection to secure the protection and enjoyment of the right to life and security of the individual guaranteed under the Covenant. 283. The Committee is concerned that excludable aliens are dealt with by lower standards of due process than other aliens and, in particular, that those who cannot be deported or extradited may be

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held in detention indefinitely. The situation of a number of asylum-seekers and refugees is also a matter of concern to the Committee. 284. The Committee does not share the view expressed by the Government that the Covenant lacks extraterritorial reach under all circumstances. Such a view is contrary to the consistent interpretation of the Committee on this subject, that, in special circumstances, persons may fall under the subject-matter jurisdiction of a State party even when outside that State's territory. 285. The Committee is concerned about conditions of detention of persons deprived of liberty in federal or state prisons, particularly with regard to planned measures which would lead to further overcrowding of detention centres. The Committee is also concerned at the practice which allows male prison officers access in women's detention centres and which has led to serious allegations of sexual abuse of women and the invasion of their privacy. The Committee is particularly concerned at the conditions of detention in certain maximum security prisons, which are incompatible with article 10 of the Covenant and run counter to the United Nations Standard Minimum Rules for the Treatment of Prisoners and the Code of Conduct for Law Enforcement Officials. 286. The Committee is concerned that, in some states, non-therapeutic research may be conducted on minors or mentally-ill patients on the basis of surrogate consent in violation of the provisions in article 7 of the Covenant. 287. The Committee is concerned at the serious infringement of private life in some states which classify as a criminal offence sexual relations between adult consenting partners of the same sex carried out in private, and the consequences thereof for their enjoyment of other human rights without discrimination. 288. The Committee is concerned about the impact which the current system of election of judges may, in a few states, have on the implementation of the rights provided under article 14 of the Covenant and welcomes the efforts of a number of states in the adoption of a merit-selection system. It is also concerned about the fact that in many rural areas justice is administered by unqualified and untrained persons. The Committee also notes the lack of effective measures to ensure that indigent defendants in serious criminal proceedings, particularly in state courts, are represented by competent counsel. 289. The Committee welcomes the significant efforts made in ensuring to everyone the right to vote but is concerned at the considerable financial costs that adversely affect the right of persons to be candidates at elections. 290. The Committee is concerned that aboriginal rights of Native Americans may, in law, be extinguished by Congress. It is also concerned by the high incidence of poverty, sickness and alcoholism among Native Americans, notwithstanding some improvements achieved with the Self-Governance Demonstration Project. 291. The Committee notes with concern that information provided in the core document reveals that disproportionate numbers of Native Americans, African Americans, Hispanics and single parent families headed by women live below the poverty line and that one in four children under six live in poverty. It is concerned that poverty and lack of access to education adversely affect persons belonging to these groups in their ability to enjoy rights under the Covenant on the basis of equality.

5. Suggestions and recommendations

292. The Committee recommends that the State party review its reservations, declarations and understandings with a view to withdrawing them, in particular reservations to article 6, paragraph 5, and article 7 of the Covenant. 293. The Committee hopes that the Government of the United States will consider becoming a party to the First Optional Protocol to the Covenant. 294. The Committee recommends that appropriate inter-federal and state institutional mechanisms be established for the review of existing as well as proposed legislation and other measures with a view to achieving full implementation of the Covenant, including its reporting obligations. 295. The Committee emphasizes the need for the Government to increase its efforts to prevent and eliminate persisting discriminatory attitudes and prejudices against persons belonging to minority groups and women including, where appropriate, through the adoption of affirmative action. State legislation which is not yet in full compliance with the non-discrimination articles of the Covenant should be brought systematically into line with them as soon as possible. 296. The Committee urges the State party to revise federal and state legislation with a view to restricting the number of offences carrying the death penalty strictly to the most serious crimes, in conformity with article 6 of the Covenant and with a view eventually to abolishing it. It exhorts the

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authorities to take appropriate steps to ensure that persons are not sentenced to death for crimes committed before they were 18. The Committee considers that the determination of methods of execution must take into account the prohibition against causing avoidable pain and recommends the State party to take all necessary steps to ensure respect of article 7 of the Covenant. 297. The Committee urges the State party to take all necessary measures to prevent any excessive use of force by the police; that rules and regulations governing the use of weapons by the police and security forces be in full conformity with the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; that any violations of these rules be systematically investigated in order to bring those found to have committed such acts before the courts; and that those found guilty be punished and the victims be compensated. Regulations limiting the sale of firearms to the public should be extended and strengthened. 298. The Committee recommends that appropriate measures be adopted as soon as possible to ensure to excludable aliens the same guarantees of due process as are available to other aliens and guidelines be established which would place limits on the length of detention of persons who cannot be deported. 299. The Committee expresses the hope that measures be adopted to bring conditions of detention of persons deprived of liberty in federal or state prisons in full conformity with article 10 of the Covenant. Legislative, prosecutorial and judicial policy in sentencing must take into account that overcrowding in prisons causes violation of article 10 of the Covenant. Existing legislation that allows male officers access to women's quarters should be amended so as to provide at least that they will always be accompanied by women officers. Conditions of detention in prisons, in particular in maximum security prisons, should be scrutinized with a view to guaranteeing that persons deprived of their liberty be treated with humanity and with respect for the inherent dignity of the human person, and implementing the United Nations Standard Minimum Rules for the Treatment of Prisoners and the Code of Conduct for Law Enforcement Officials therein. Appropriate measures should be adopted to provide speedy and effective remedies to compensate persons who have been subjected to unlawful or arbitrary arrests as provided in article 9, paragraph 5, of the Covenant. 300. The Committee recommends that further measures be taken to amend any federal or state regulation which allow, in some states, non-therapeutic research to be conducted on minors or mentally-ill patients on the basis of surrogate consent. 301. The Committee recommends that the current system in a few states in the appointment of judges through elections be reconsidered with a view to its replacement by a system of appointment on merit by an independent body. 302. The Committee recommends that steps be taken to ensure that previously recognized aboriginal Native American rights cannot be extinguished. The Committee urges the Government to ensure that there is a full judicial review in respect of determinations of federal recognition of tribes. The Self-Governance Demonstration Project and similar programmes should be strengthened to continue to fight the high incidence of poverty, sickness and alcoholism among Native Americans. 303. The Committee expresses the hope that, when determining whether currently permitted affirmative action programmes for minorities and women should be withdrawn, the obligation to provide Covenant's rights in fact as well as in law be borne in mind. 304. The Committee recommends that measures be taken to ensure greater public awareness of the provisions of the Covenant and that the legal profession as well as judicial and administrative authorities at federal and state levels be made familiar with these provisions in order to ensure their effective application.

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DEATH PENALTY SAFEGUARDS

Safeguards guaranteeing protection of the rights of those facing the death penalty

Adopted by Economic and Social Council resolution 1984/50 of 25 May 1984

1. In countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences.

2. Capital punishment may be imposed only for a crime for which the death penalty is prescribed by law at the time of its commission, it being understood that if, subsequent to the commission of the crime, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

3. Persons below 18 years of age at the time of the commission of the crime shall not be sentenced to death, nor shall the death sentence be carried out on pregnant women, or on new mothers, or on persons who have become insane.

4. Capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts.

5. Capital punishment may only be carried out pursuant to a final judgement rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in article 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings.

6. Anyone sentenced to death shall have the right to appeal to a court of higher jurisdiction, and steps should be taken to ensure that such appeals shall become mandatory.

7. Anyone sentenced to death shall have the right to seek pardon, or commutation of sentence; pardon or commutation of sentence may be granted in all cases of capital punishment.

8. Capital punishment shall not be carried out pending any appeal or other recourse procedure or other proceeding relating to pardon or commutation of the sentence.

9. Where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering.

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REPORT OF THE SPECIAL RAPPORTEUR 2002 UNITED NATIONS

E

Economic and Social Council

Distr. GENERAL E/CN.4/2002/74 9 January 2002 Original: ENGLISH

COMMISSION ON HUMAN RIGHTS Fifty-eighth session Item 11 (b) of the provisional agenda

CIVIL AND POLITICAL RIGHTS, INCLUDING QUESTIONS OF: DISAPPEARANCES AND SUMMARY EXECUTIONS

Extrajudicial, summary or arbitrary executions

Report of the Special Rapporteur, Ms. Asma Jahangir, submitted

pursuant to Commission on Human Rights resolution 2001/45 […]

G. Capital punishment In its resolution 2001/45, the Commission on Human Rights requested the Special Rapporteur to continue monitoring the implementation of existing international standards on safeguards and restrictions relating to the imposition of capital punishment, bearing in mind the comments made by the Human Rights Committee in its interpretation of article 6 of the International Covenant on Civil and Political Rights, as well as the Second Optional Protocol thereto. In this context, the Special Rapporteur transmitted 44 urgent appeals to the Governments of the following countries: Bahrain (1), China (7), Congo (1), Democratic Republic of the Congo (1), India (1), Iran (Islamic Republic of) (3), Jordan (3), Nigeria (1), Oman (1), Pakistan (1), Saudi Arabia (1), Singapore (2), United States of America (18), Uzbekistan (1), Viet Nam (1), Yemen (1). In this connection, she also sent one urgent appeal to the Taliban Council, three to the Palestinian Authority and one to the leadership of “Puntland” in Somalia. For a more detailed discussion of this issue, see chapter V, section F of the present report. […]

V. AREAS OF SPECIAL FOCUS […]

F. Capital punishment While capital punishment is not banned under international law, it must under all circumstances be regarded as an extreme exception to the fundamental right to life, and must as such be applied in the

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most restrictive manner possible. It is also imperative that all restrictions and fair trial standards pertaining to capital punishment contained in international human rights instruments are fully and consistently respected in legal proceedings relating to capital offences. In the discharge of her mandate, the Special Rapporteur takes action in cases of capital punishment in which there is reason to believe that international restrictions, which are discussed in the paragraphs below, are not respected. In such cases, the carrying out of a death sentence may constitute a violation of the right to life. The experience of the mandate in regard to respect of restrictions and standards pertaining to the use of the death penalty has not been encouraging. Many retentionist countries do not have independent legal systems to ensure that these restrictions are respected. At the same time, the imposition of capital punishment continues. The Special Rapporteur has on several occasions called for better transparency relating to the death penalty and its execution. No reliable statistics are available in a number of countries, and there is little information regarding domestic guidelines ensuring that the relevant safeguards are being observed. Most countries with a mature legal system have abolished the death penalty. Others amongst them which retain it find it difficult to ensure that all restrictions and standards guaranteeing fair trial are met in each and every case. The Special Rapporteur and her predecessor have tried to emphasize the fallibility of even the best of legal systems. These efforts have brought some response. The courts and mechanisms for clemency in national jurisdictions are increasingly becoming cautious in passing or confirming death sentences. In this connection, the Special Rapporteur would like to draw attention to a number of cases in the United States, in which courts have stayed executions in order to examine alleged violations of restrictions on the use of capital punishment or irregularities in trials leading up to a death sentence. Following the trend, the State of North Carolina passed a law banning the death penalty for mentally disturbed persons. These cases will be discussed in closer detail in the paragraphs below. Another positive development is the ruling of the Eastern Caribbean Court of Appeal holding the mandatory death penalty to be unconstitutional. The Special Rapporteur welcomes the statement by President Vladimir Putin of the Russian Federation during a visit to Washington D.C., in which he reportedly declared his personal opposition to the death penalty and confirmed that the Russian Federation would continue to respect the de facto moratorium it has maintained for the last five years. The Special Rapporteur strongly recommends that the Government of the Russian Federation now proceed without delay to abolishing capital punishment in domestic law and to ratifying Protocol 6 of the European Convention on Human Rights. The Special Rapporteur wishes to thank the Government of China for the comprehensive replies it has submitted in relation to some cases raised in her communications. She takes particular note of the Government’s letter of 21 November 2000, in which it gives a detailed overview of the Chinese justice system in relation to capital offences. In that letter, the Government emphasizes that capital punishment is applied in strict compliance with China’s international obligations. Accordingly, the death penalty is used only in relation to “most serious crimes”, and never for juvenile offenders or expectant mothers. Defendants have the right to legal counsel, appointed by the court if they have no trusted lawyer. They have the right to appeal their sentences, and those not subject to immediate execution may receive a death sentence with a two-year reprieve. Defendants may have the sentence commuted to life imprisonment if they do not commit new intentional crimes within those two years. If a prisoner “renders outstanding service”, he or she may have the sentence reduced to 15 to 20 years in prison. According to the Government’s letter, this system has effectively reduced the number of executions: in recent years some 99 per cent of criminals sentenced to death have benefited from commutation under this scheme. In its letter the Government also expresses the view that, “following a historical trend, the death sentence, as a most ancient form of legal penalty, will eventually be abolished throughout the world”. The Government notes, however, that abolition that surpasses a particular stage of social development will inevitably lead to a range of social problems, and even have consequences that are contrary to the original purpose of promoting and protecting human rights. The Government adds that abolition depends on where the security interests of the great majority of the people lie, and on whether it is conducive to ensuring their human rights. Therefore, the Government concludes, States should decide on the matter of abolition according to their specific conditions and respecting the will of the people. The Special Rapporteur,

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nevertheless, continues to be concerned at the situation in China, where a growing number of people have allegedly been sentenced to death for corruption, embezzlement, bribery and other non-lethal crimes. Many executions are reportedly carried out in public by firing squad, in front of large crowds in sports stadiums and public squares. 1. Restrictions on the use of the death penalty Capital punishment for juvenile offenders is prohibited under international law. The Convention on the Rights of the Child, which has been ratified by all States, except the United States of America and Somalia, clearly excludes the use of the death penalty for crimes committed by persons under the age of 18. Moreover, article 6.5 of the International Covenant on Civil and Political Rights stipulates that the death penalty shall not be imposed for crimes committed by persons below 18 years of age. In this connection, the Special Rapporteur also wishes to draw attention to resolution 200/17, adopted on 17 August 2000 by the Sub-Commission on the Promotion and Protection of Human Rights. In that resolution, the Sub-Commission condemned unequivocally the imposition of the death penalty on those aged under 18 at the time of the commission of the crime. According to information received, in the United States of America around 85 persons are currently under sentence of death for crimes committed when they were under the age of 18. One third of these juvenile offenders are reportedly held in the State of Texas alone. The Special Rapporteur has been informed that 23 states retain legislation allowing for the death penalty to be imposed on juvenile offenders. However, only 15 of them are reported to have juvenile offenders in detention awaiting execution. During the present reporting period the Special Rapporteur took action on behalf of three juvenile offenders facing the death penalty in the United States. On 26 February 2001, she sent an urgent appeal regarding the case of Antonio Richardson, who was scheduled to be executed in the State of Missouri on 7 March 2001. He was reportedly sentenced to death in 1993 for a crime committed when he was 16 years of age. It was further reported that Richardson has limited mental ability and suffers from mental illness, considerations which were allegedly not brought to the attention of the jury in connection with his trial. In March 2001, the United States Supreme Court ordered a stay of Antonio Richardson’s execution. The case was put on hold, pending the Supreme Court’s consideration of the case of Ernest McCarver, a mentally disabled man sentenced to death in North Carolina. The Supreme Court was to decide whether the execution of prisoners with mental disabilities violates the Eighth Amendment to the United States Constitution prohibiting cruel and unusual punishment. As will be discussed below, in September 2001, the Supreme Court dismissed McCarver’s case as moot. In Richardson’s case, there is an additional petition before the Supreme Court that challenges his death sentence on the grounds of his age. On 10 July 2001, the Special Rapporteur wrote to the Government of the United States in relation to the case of Napoleon Beazley, an African American, who was scheduled to be executed in the State of Texas on 15 August 2001. It was reported that Beazley has been sentenced to death for a murder committed in 1995, when he was 17 years old. In this case, concern had also been expressed regarding the composition of the jury. It was alleged that, although the trial was being held in Smith County, which reportedly has a 20 per cent African American population, all the jury members where white. On 10 July 2001, the Texas Court of Appeals ordered a stay of Beazley’s execution, so as to allow it to consider allegations that he had not received adequate legal counsel from his first appellate attorney. On 24 September 2001, an urgent appeal was sent concerning the case of Gerald Lee Mitchell, an African American who was scheduled to be executed in Texas on 22 October 2001. Mitchell was reportedly sentenced to death in 1986, allegedly before an all-white jury, for a murder committed in 1985, when he was 17 years of age. Gerald Lee Mitchell was executed as scheduled on 22 October 2001. The Special Rapporteur wishes to thank the Government of the United States of America for its timely and comprehensive replies to her urgent appeals concerning death penalty cases. In its reply concerning the case of Gerald Lee Mitchell by letter of 19 October, the Government noted, inter alia, that the execution of a 16- or 17-year-old offender was not a violation of United States obligations under the International Covenant on Civil and Political Rights, as the United States had made a valid, effective reservation to provisions on this matter in article 6.5, which prohibits the execution of juvenile offenders. The Government further stated that there was no customary international legal principle

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prohibiting the execution of 16- and 17-year-old offenders, adding that “In sum, the United States cannot be bound by any international legal principle purporting to prohibit the execution of juvenile offenders given its persistent objection to the application of any such standards to the United States.” The Special Rapporteur sent an urgent appeal to the Government of Iran on 27 June 2001 regarding reports that an Iranian court had sentenced to death Azizullah Shenwari, a 14-year-old Pakistani national. It appears that the boy was convicted on drug charges. In the same appeal, the Special Rapporteur also referred to reports that Mehrad Yusefi, 18 years of age, had been executed in a prison in the south-western region of Ilam. It is alleged that he was convicted for a crime committed when he was 16 years old. While the Government has not replied to this particular communication, in a separate letter of 17 April 2001, commenting on the Special Rapporteur’s report to the fifty-seventh session of the Commission, the Government stated that under the Islamic Penal Code, no person under the age of 18 is sentenced to death. On 25 June 2001, the Special Rapporteur sent an urgent appeal to the Government of India regarding the case of Ram Deo Chauhan, who had reportedly been sentenced to death for the murder of four members of the family he worked for. Chauhan was a child domestic worker. According to information received, there was strong evidence that Ram Deo Chauhan was 15 years of age when the crime was committed. He was reportedly sentenced to death by an ordinary court in Assam in March 1998. It was further alleged that the Supreme Court upheld the sentence, stating that in the light of the cruelty of the murders, youth was not a mitigating circumstance warranting the imposition of a reduced sentence. The Special Rapporteur also sent an urgent appeal to the Government of the Democratic Republic of the Congo on 1 May 2001 regarding a case of four former child soldiers, Diyavanga Nkuyu (17 years old), Mbumba Ilunga (17), Mwati Kabwe (16) Jean-Louis Bosey (16), who reportedly were sentenced to death by the Court of Military Order (La Cour d’Ordre Militaire de la Republique Démocratique du Congo). It was reported that the court tried the four in their capacity as army soldiers, without taking their age into consideration. It appears that sentences passed by the military court cannot be appealed. The Special Rapporteur understands that the sentences were subsequently commuted to life imprisonment and later reduced to five years by an order of the President. On 20 August, the Special Rapporteur sent another urgent appeal to the Government of the Democratic Republic of the Congo, concerning Babuyu Oleko, a 17-year-old child soldier, who was reportedly sentenced to death by the Court of Military Order on 10 January 2001. In her previous report to the Commission, the Special Rapporteur took note of the reply of the Government of Yemen to a questionnaire on the use of the death penalty the Special Rapporteur sent out in July 1999. In its letter, the Government of Yemen stated that it was in the process of enacting a law that sets the age-limit for juveniles at 18, and under which death sentences would not be imposed on children under the age of 18. The Special Rapporteur urged the Government of Yemen to carry out this reform without delay. By letter of 5 April 2001, the Government of Yemen informed her that the proposed amendment prohibiting the death penalty for juveniles under the age of 18 was being debated by Parliament, after which this reform would be promulgated by Presidential Decree. In resolution 1989/64 the Economic and Social Council recommended that States strengthen the protection of the rights of those facing the death penalty by eliminating the death penalty for persons suffering from mental retardation or extremely limited mental competence. Moreover, the Safeguards guaranteeing protection of the rights of those facing the death penalty stipulate that the death penalty shall not be carried out on persons who have become insane. The Special Rapporteur strongly supports these recommendations and urges States to take action to reflect these restrictions in domestic law. She further believes that at times old age can bring infirmity which may impact on a person’s mental and physical competence. During the period under review, the Special Rapporteur sent urgent appeals on behalf of six persons in the United States and one in Yemen who were facing execution after having been sentenced to death despite indications that they were suffering from mental illness or disability. In reply to the Special Rapporteur’s urgent appeal in the case of Mr. Hussein al-Mu’ammari, the Government of Yemen stated that his case had passed through the legally prescribed stages and

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procedures, including the Supreme Court of Yemen. None of the courts concerned had found the defendant to be mentally disturbed, nor had any irregularities in the trial proceedings been detected. On 25 September 2001, the United States Supreme Court dismissed as moot the case of Ernest McCarver, referred to above. The Special Rapporteur has been informed that after the Supreme Court agreed to review the case of McCarver, the State of North Carolina passed a law banning death sentences for mentally disabled persons. While this law reportedly applies retroactively, already passed death sentences will apparently not be automatically commuted. The Special Rapporteur is deeply concerned that in a number of countries the death penalty is imposed for crimes which do not fall within the category of “the most serious crimes”, as stipulated in article 6, paragraph 2 of the International Covenant on Civil and Political Rights. Moreover, paragraph 1 of the Safeguards guaranteeing protection of the rights of those facing the death penalty states that the scope of crimes subject to the death penalty should not go beyond intentional crimes with lethal or other extremely grave consequences. The Special Rapporteur is strongly of the opinion that these restrictions exclude the possibility of imposing death sentences for economic and other so-called victimless offences, actions relating to prevailing moral values, or activities of a religious or political nature - including acts of treason, espionage or other vaguely defined acts usually described as “crimes against the State”. The Special Rapporteur is concerned at the imposition of a mandatory death penalty for crimes which do not constitute “most serious crimes”, or where fair trial standards were not respected. In many cases, the mental or physical state of the offender is not taken into consideration, nor are expectant mothers excluded from such a sentence. Some laws calling for a mandatory death penalty are also vague. In this connection, on 7 November 2001 the Special Rapporteur sent a joint urgent appeal with the Special Rapporteur on violence against women, its causes and consequences, to the Government of Nigeria regarding the case of Ms. Safiya Hussaini Tungar-Tudu, who was reportedly sentenced to death by stoning by a court in Gwadabawa in the State of Sokoto, for having had pre-marital sex. It may be noted that Ms. Tungar-Tudu was reportedly pregnant at that time, and that her alleged partner was acquitted by the same court, because it supposedly lacked sufficient evidence to prosecute him. Furthermore, on 17 January 2001 a joint urgent appeal was sent with the Special Representative on the situation of human rights in Iran regarding the case of Mostafa Nikbakt, who reportedly was sentenced to death by the Court in Orumieh for having written slogans against the country’s leader. In a letter to the Special Rapporteur of 17 April 2001, already referred to above, the Government of Iran stated, referring to the case of Nikhbakt, that such offences, if proved in a court of law, would carry a jail sentence of between six months and two years. In the same letter, the Government also stated that Akbar Mohammadi, who was arrested during a student demonstration, referred to in the Special Rapporteur’s previous report (E/CN.4/2000/9/Add.1, para. 245), had not been sentenced to death as suggested in the report, but had received a 15-year prison sentence. Another cause for concern is the manner in which death sentences are executed. Public hangings and other inhuman forms of execution continue to be practised in many countries. The Special Rapporteur wishes to recall that paragraph 9 of the Safeguards guaranteeing protection of the rights of those facing the death penalty stipulates that “Where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering”. In this connection, on 23 January 2001, an urgent appeal with the Special Representative on the situation of human rights in Iran and the Special Rapporteurs on torture and on violence against women, its causes and consequences, was sent to the Government of Iran regarding the case of Ms. Maryam Ayoubi, who had reportedly been sentenced to death by stoning. 2. Fair trial It is imperative that legal proceedings in relation to capital offences conform to the highest standards of impartiality, competence, objectivity and independence of the judiciary, in accordance with the pertinent international legal instruments. Defendants facing the imposition of capital punishment must fully benefit from the right to adequate legal counsel at every stage of the proceedings, and should be presumed innocent until their guilt has been proved beyond a reasonable doubt. These safeguards must be implemented in all cases without exception or discrimination. It is further crucial that such

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legal proceedings consistently respect and ensure the right of review of both the factual and legal aspects of the case by a higher instance, which should be composed of judges other than those who dealt with the case at first instance. Furthermore, there can be no exception to the defendant’s right to seek pardon, clemency or commutation of the sentence. In this connection, reference is made to the recommendation made by the Economic and Social Council in its resolution 1989/64 of 24 May 1989 entitled “Implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty”, that Member States provide for mandatory appeals or review with provisions for clemency or pardon in all cases of capital offence. The Special Rapporteur notes that, on 2 April 2001, the Eastern Caribbean Court of Appeal ruled that the mandatory death penalty in Caribbean countries is unconstitutional. The decision is effective in the seven countries under the Court’s jurisdiction: Antigua and Barbuda, Dominica, Grenada, Montserrat, St. Kitts and Nevis, St. Lucia, and St. Vincent and the Grenadines, as well as in the British Independent Territory of Anguilla. The Court issued its ruling in relation to two cases, originating in St. Vincent and the Grenadines and St. Lucia respectively, referred to it by the Judicial Committee of the Privy Council in London. During the period under review, the Special Rapporteur intervened in three cases under the jurisdiction of the Palestinian Authority, in which the defendants were reported to have been sentenced to death in trials falling short of international fair trial standards, or had been denied their right to appeal their sentences. She also sent urgent appeals on behalf of persons in Jordan, Pakistan, Tajikistan and Uzbekistan, who had allegedly been sentenced to death after having been tortured during interrogation and deprived of their right to a fair trial. A joint appeal with the Special Rapporteur on the independence of judges and lawyers was also sent to the Government of Viet Nam, concerning Mr. Bui Huu Tai, who according to reports, had been sentenced to death without having access to legal counsel. In its reply, the Government stated that Mr. Bui Huu Tai had been assisted by three defence attorneys during his trial. The practice of setting up special tribunals or jurisdictions in response to situations of internal conflict or other exceptional circumstances may also have serious implications for the defendants’ right to a fair trial. The judges appointed to such tribunals are often closely connected and at times directly accountable to the law enforcement authorities or the military. Such tribunals are often established in order to expedite trials, which may result in hastily imposed death sentences. There are reports of serious violations of fair trial standards in connection with proceedings before special tribunals, particularly with regard to the independence and impartiality of the judiciary. The Special Rapporteur is also concerned at the situation of foreigners on death row in the United States of America who reportedly have been sentenced without being informed of their right under article 36 of the Vienna Convention on Consular Relations to receive legal assistance from their respective consulates. On 6 June 2001, the Special Rapporteur sent an urgent appeal to the Government of the United States regarding the case of Gerardo Valdez Maltos, a Mexican national who was scheduled to be executed in Oklahoma on 19 June 2001. In addition to allegations of inadequate legal assistance and indications that Maltos is mentally impaired and ill, it appeared that he was never informed of his right as a foreign national to seek assistance from his consulate. Reportedly, the Government of Mexico was unaware of Maltos’ case until 19 April 2001, when he had already been sentenced. On 10 September 2001, the Oklahoma Court of Criminal Appeals granted an indefinite stay of execution to Gerardo Valdez Maltos. 3. Desirability of the abolition of the death penalty The Special Rapporteur has already expressed her deep concern regarding the lack of capacity in a number of retentionist countries to observe relevant safeguards and limitations when applying the death penalty. In retentionist countries with a strong legal system, overall safeguards required to ensure a fair trial have often been found missing on appeal, and even after the appeal stage. This raises the possibility that cases which have not been pursued vigorously escape the attention of the legal system and civil society. The decision by the international community not to include the death penalty in the Rome Statute of the International Criminal Court is noteworthy. The imposition of the death penalty is not

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contemplated for the most serious crimes that will be tried by the International Criminal Court envisaged by the Rome Statute. Its imposition at the national level, then, for crimes of a less serious nature would run counter to the principle of the proportionality of penal sentences to the seriousness of the offence. The Special Rapporteur therefore believes that if the principle of equality and equity is to be maintained, then all crimes lesser in gravity to those enumerated in the Rome Statute should not be awarded capital punishment. There is an emerging global trend towards limiting the use of capital punishment. Some 75 countries and territories have abolished the practice, and around 30 have not carried out the death penalty in the past 10 years. In some retentionist countries, the application of the death penalty has decreased remarkably. […]

VII. CONCLUDING REMARKS AND RECOMMENDATIONS […]

Recommendations The recommendations presented in the Special Rapporteur’s previous report (E/CN.4/2001/9) should be reconsidered and be read as part of the present report. In addition, the Special Rapporteur wishes to present the following recommendations in the hope that they will receive attention. […] 11. Capital punishment The Special Rapporteur notes that the safeguards and guarantees for the protection of those facing capital punishment are not being followed in a large number of cases brought to her attention. She is also concerned at the lack of transparency and information on capital punishment and executions of death sentences. She, therefore, calls upon all retentionist Governments to impose a moratorium on executions and set up national commissions to report on the situation in the light of international standards and resolutions before executions are resumed. The execution of persons who were children under the age of 18 at the time of the crime is only being carried out by a very few countries. There is a virtual consensus on its abolition. The Special Rapporteur urges the few countries still executing children to abolish the practice. In order to scrutinize whether safeguards relating to capital punishment are being observed, it is urged that every court decision awarding capital punishment must record the safeguards to be observed and that the decision be made public. - - - - -

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VIENNA CONVENTION ON CONSULAR RELATIONS 1963 (EXTRACT)

Article 36

COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE

With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.

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ACHPR - DEATH PENALTY MORATORIUM RESOLUTION 1999

RESOLUTION URGING THE STATES TO ENVISAGE A MORATORIUM ON THE DEATH PENALTY

The African Commission on Human and Peoples’ Rights meeting at its 26th Ordinary Session held from 1-15 November 1999 in Kigali, Rwanda; Recalling Article 4 of the African Charter on Human and Peoples’ Rights which affirms the right of everyone to life and Article V(3) of the African Charter on the Rights and Welfare of the Child providing that Death Sentence shall not be pronounced for crimes committed by children; Recalling UN Commission on Human Rights’ resolutions 1998/8 and 1999/61, which calls upon all states that still maintain the death penalty to, inter alia, establish a moratorium on executions, with a view to abolishing the death penalty; Recalling UN Sub-Commission on the Promotion and Protection of Human Rights’ resolution 1999/4 which calls upon all States that retain the death penalty and do not apply the moratorium on executions, in order to mark the millennium, to commute the sentences of those under sentence of death on 31 December 1999 at least to sentences of life imprisonment and to commit themselves to a moratorium on the imposition of the death penalty throughout the year 2000; Noting that three States parties to the African Charter have ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights aimed at abolition of the death penalty; Noting further that at least 19 States parties have de facto or de jure abolished the death penalty; Considering the exclusion of capital punishment from the penalties that the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda are authorised to impose ; Concerned that some States parties impose the death penalty under conditions not in conformity with the rights pertaining to a fair trial guaranteed in the African Charter on Human and Peoples’ Rights ; URGES all States parties to the African Charter on Human and Peoples’ Rights that still maintain the death penalty to comply fully with their obligations under the treaty and to ensure that persons accused of crimes for which the death penalty is a competent sentence are afforded all the guarantees in the African Charter; CALLS upon all States parties that still maintain the death penalty to : limit the imposition of the death penalty only to the most serious crimes ; consider establishing a moratorium on executions of death penalty; reflect on the possibility of abolishing death penalty. Done in Kigali, 15 November 1999.

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EU POLICY ON THE DEATH PENALTY EUROPEAN UNION Brussels, 3 June 1998 THE COUNCIL Guidelines to EU Policy Towards Third Countries on the Death Penalty I - INTRODUCTION (i) The United Nations, inter alia in the International Covenant on Civil and Political Rights

(ICCPR), the Convention on the Rights of the Child (CRC) and in the ECOSOC Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, has established strict conditions only under which the death penalty may be used. The Second Optional Protocol to the ICCPR provides for states to commit themselves to permanent abolition of the death penalty. The European Union has now moved beyond this and now espouses abolition for itself and others

(ii) At its 53rd session, and at its 54th session in a resolution sponsored by all EU countries, the UN Commission on Human Rights called on countries which maintained the death penalty • Progressively to restrict the number of offences for which it may be imposed • To establish a moratorium on executions with a view to completely abolishing the death

penalty (iii) At the October 1997 Council of Europe Summit, Heads of Government, including all EU

member states, called for universal abolition of the death penalty. Moreover, new member states of the Council of Europe have committed themselves to moratoria and to ratify the 6th Protocol of the European Convention on Human Rights (ECHR) committing them to permanent abolition

(iv) The 1997 Amsterdam Treaty of the European Union noted that since the signature of the 6th Protocol to the European Convention on Human Rights, the death penalty had been abolished in a majority of EU member states, and had not been used in any of them.

(v) In the Organization for Security and Cooperation in Europe (OSCE), participating States are committed under the Copenhagen document to exchange information on the abolition of the death penalty and to make this available to the public. The EU fulfils this by regular statements within the OSCE's Human Dimension framework

(vi) The statutes of the International Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda, both of which the EU supported, contain no provision for the death penalty, notwithstanding the fact that they were set up to deal with mass violations of humanitarian law including genocide

II - OPERATIONAL PAPER

The EU considers that abolition of the death penalty contributes to the enhancement of human dignity and the progressive development of human rights

The objectives of the European Union are

- To work towards universal abolition of the death penalty as a strongly held policy view agreed by all EU member states;

- Where the death penalty still exists, to call for its use to be progressively restricted and to insist that it be carried out according to minimum standards as set out in the attached paper. The EU will make these objectives known as an integral part of its human rights policy

The European Union will intensify its initiatives, including declarations or demarches on the death penalty, in international fora and towards other countries, in the light of the attached Minimum Standards Paper.

The European Union will consider, case by case, and on the basis of the criteria, whether to make demarches to other countries over the use of the death penalty

The main elements of the EU approach will be as follows:

GENERAL DEMARCHES

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Where relevant, the European Union will raise the issue of the death penalty in its dialogue with third countries. Elements in these contacts will include:

- The EU's call for universal abolition of the death penalty, or at least for a moratorium.

- Where its use is maintained, the EU will emphasise that states should only use the death penalty in line with the minimum standards as set out in the attached paper, and they should maintain maximum transparency over its use.

The precise nature of such approaches will take into consideration, inter alia:

- Whether the country has a properly functioning and open judicial system;

- Whether the country has made international undertakings not to use the death penalty, eg in connection with regional organisations and instruments;

- Whether the legal system of the country, and its use of the death penalty, is closed to public and international scrutiny, and whether there are indications that the death penalty is widely used in contravention of minimum standards.

Particular consideration will be given to making EU demarches on the use of the death penalty at times at which a country's policy on the death penalty is in flux, eg where an official or de facto moratorium on the death penalty is to be ended, or where the death penalty is to be reintroduced through legislation.

Particular consideration will be given to reports and findings by relevant international human rights mechanisms.

A demarche or public statement may be made where countries take steps towards abolition of the death penalty.

INDIVIDUAL CASES.

In addition, where the European Union becomes aware of individual death penalty cases which violate minimum standards, the EU will consider making specific demarches.<.

Speed will often be essential in these cases. Member states proposing such demarches should therefore provide as much background as possible drawing on all available sources. This should include brief details of the alleged crime, criminal proceedings, the precise nature of the violation of the minimum standards, the status of any appeal and, if known, the expected date of execution..

Where there is sufficient time consideration should be given to seeking, from Heads of Mission, detailed information and advice on the case prior to demarches being made.

HUMAN RIGHTS REPORTING

EU Heads of Mission should, as a matter of course, include an analysis of the use of the death penalty in their human rights reports as well as including periodic evaluation of the effect and impact of EU approaches.

POSSIBLE RESULTS OF EU INTERVENTIONS: OTHER INITIATIVES

The EU's objective, where possible, is to persuade third countries to abolish the death penalty. To this end, the EU will encourage countries to consider acceding to the Second Optional Protocol to the ICCPR and comparable regional instruments. Additionally, where this is not possible, the EU will nevertheless maintain abolition as an objective, and will:

- Encourage states to ratify and comply with International human rights instruments, especially those relating to the use of the death penalty, including the ICCPR;

- Raise the issue in multilateral fora and work towards moratoria on the use of the death penalty and, in due course, abolition;

- Encourage relevant international organisations to take appropriate steps to encourage states to ratify and comply with international standards relating to the death penalty;

- Encourage and offer bilateral and multilateral cooperation, inter alia in collaboration with civil society, including in the legal field with the aim of establishing a fair and impartial judicial process for criminal cases.

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III - MINIMUM STANDARDS PAPER

Where states insist on maintaining the death penalty, the EU considers it important that the following minimum standards should be met.

(i) Capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences. The death penalty should not be imposed for non-violent financial crimes or for non-violent religious practice or expression of conscience.

(ii) Capital punishment may be imposed only for a crime for which the death penalty was prescribed at the time of its commission, it being understood that if, subsequent to the commission of the crime, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

(iii) Capital punishment may not be imposed on.P

- Persons below 18 years of age at the time of the commission of their crime;

- Pregnant women or new mothers;

- Persons who have become insane.

(iv) Capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for alternative explanation of the facts.

(v) Capital punishment must only be carried out pursuant to a final judgement rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in Article 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with, a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings, and where appropriate, the right to contact a consular representative.

(vi) Anyone sentenced to death shall have an effective right to appeal to a court of higher jurisdiction, and steps should be taken to ensure that such appeals become mandatory.

(vii) Where applicable, anyone sentenced to death shall have the right to submit an Individual complaint under International procedures; the death sentence will not be carried out while the complaint remains under consideration under those procedures.

(viii) Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases of capital punishment.

(ix) Capital punishment may not be carried out in contravention of a state's international commitments.

(x) The length of time spent after having been sentenced to death may also be a factor.

(xi) Where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering. It may not be carried out in public or in any other degrading manner.

(xii) The death penalty should not be imposed as an act of political revenge in contravention of the minimum standards, eg against coup plotters.

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EU DEMARCHE ON THE DEATH PENALTY Presented, with a Memorandum, to United States Assistant Secretary of State for Human Rights, Frank Loy, on February 25, 2000 by the EU Presidency, represented by Ambassador Joao da Rocha Paris, Embassy of Portugal, accompanied by FranHoise Barry Delongchamps, Deputy Chief of Mission, Embassy of France and Ambassador Guenter Burghardt, Head of Delegation, European Commission

The European Union (EU) is opposed to the death penalty in all cases and accordingly aims at its universal abolition. In line with the international community view, the EU considers that the abolition of the death penalty contributes to the enhancement human dignity and the progressive development of human rights.

The EU expresses its concern about the increasing number of persons sentenced to death and executed in the United States of America (USA) - nearly 600 executions have been carried out since reinstatement of the death penalty in 1976, nearly 500 of which took place in the 1990s -, and, in particular about the fact that among these persons are individuals who were aged under 18 at the time of the commission of the crime, suffered from mental disorder, or were in fact innocent and unable to prove their innocence due to evident lack of adequate legal assistance.

The reservation made by the USA to Article 6 of the International Covenant on Civil and Political Rights (ICCPR), concerning the prohibition of imposing the death penalty on minors, is in the Human Rights Committee's view incompatible with the object and the purpose of the ICCPR. Several EU Member States have formally objected to the reservation. The EU urges the USA to withdraw it as a matter of urgency.

The United Nations Convention on the Rights of the Child prohibits sentencing minors both to death and also to imprisonment for life without the possibility of release. These are juvenile justice standards of paramount relevance and the EU urges the USA to ratify the Convention.

At the dawn of a new millennium the EU hopes that the USA will join the abolitionist movement, becoming an example of great weight for retentionist countries. As a first step the EU calls upon the USA to establish a moratorium on the use of the death penalty with a view to completely eliminating capital punishment

The EU calls upon the USA to respect the strict conditions under which the death penalty may be used, which are set forth in several international instruments including the ICCPR, the UN Convention on the Rights on the Child, the UN.ECOSOC Safeguard Guaranteeing Protection of those Facing the Death Penalty and the American Convention on Human Rights. Furthermore, the EU reiterates the respect due to the guarantee of the Vienna Convention that a detained national of any State party will be notified without delay of his right to contact his consulate.

Consistent with the EU approach in question of the death penalty in the USA, a Memorandum presenting an overview on the principles, experiences, policies and alternative solutions guiding the abolitionist movement in Western Europe will be delivered to the relevant federal and state US authorities. The EU hopes that this initiative will be taken into careful consideration.

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UN HUMAN RIGHTS COMMISSION RESOLUTION APRIL 2002

The question of the death penalty Commission on Human Rights resolution 2002/77 The Commission on Human Rights, Recalling article 3 of the Universal Declaration of Human Rights, which affirms the right of everyone to life, article 6 of the International Covenant on Civil and Political Rights and articles 6 and 37 (a) of the Convention on the Rights of the Child, Recalling also General Assembly resolutions 2857 (XXVI) of 20 December 1971 and 32/61 of 8 December 1977 on capital punishment, as well as resolution 44/128 of 15 December 1989, in which the Assembly adopted and opened for signature, ratification and accession the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, Recalling further Economic and Social Council resolutions 1984/50 of 25 May 1984, 1985/33 of 29 May 1985, 1989/64 of 24 May 1989, 1990/29 of 24 May 1990, 1990/51 of 24 July 1990 and 1996/15 of 23 July 1996, Recalling its resolutions 1997/12 of 3 April 1997, 1998/8 of 3 April 1998, 1999/61 of 28 April 1999, 2000/65 of 26 April 2000 and 2001/68 of 25 April 2001, in which it expressed its conviction that abolition of the death penalty contributes to the enhancement of human dignity and to the progressive development of human rights, Noting that, in some countries, the death penalty is often imposed after trials which do not conform to international standards of fairness and that persons belonging to national or ethnic, religious and linguistic minorities appear to be disproportionately subject to the death penalty, Welcoming the exclusion of capital punishment from the penalties that the International Criminal Tribunal for the Former Yugoslavia, the International Tribunal for Rwanda and the International Criminal Court are authorized to impose, Welcoming also the abolition of the death penalty which has taken place in some States since the last session of the Commission, and in particular in those States that have abolished the death penalty for all crimes, Commending the States that have recently ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, Welcoming the recent signature of the Second Optional Protocol by some States, Welcoming also the fact that many countries, while still keeping the death penalty in their penal legislation, are applying a moratorium on executions, Referring to the report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (E/CN.4/2001/9 and Corr.1) with respect to the safeguards guaranteeing protection of the rights of those facing the death penalty, set out in the annex to Economic and Social Council resolution 1984/50, Deeply concerned that several countries impose the death penalty in disregard of the limitations set out in the Covenant and the Convention on the Rights of the Child,

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Concerned that several countries, in imposing the death penalty, do not take into account the Safeguards guaranteeing protection of the rights of those facing the death penalty, 1. Recalls the sixth quinquennial report of the Secretary-General on capital punishment and implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty, submitted in accordance with Economic and Social Council resolution 1995/57 of 28 July 1995 (E/2000/3) and looks forward to receiving the yearly supplement on changes in law and practice concerning the death penalty worldwide as requested in Commission resolution 2001/68; 2. Reaffirms resolution 2000/17 of 17 August 2000 of the Sub-Commission on the Promotion and Protection of Human Rights on international law and the imposition of the death penalty on those aged under 18 at the time of the commission of the offence; 3. Calls upon all States parties to the International Covenant on Civil and Political Rights that have not yet done so to consider acceding to or ratifying the Second Optional Protocol to the Covenant, aiming at the abolition of the death penalty; 4. Urges all States that still maintain the death penalty: (a) To comply fully with their obligations under the Covenant and the Convention on the Rights of the Child, notably not to impose the death penalty for any but the most serious crimes and only pursuant to a final judgement rendered by an independent and impartial competent court, not to impose it for crimes committed by persons below 18 years of age, to exclude pregnant women from capital punishment and to ensure the right to a fair trial and the right to seek pardon or commutation of sentence; (b) To ensure that all legal proceedings, and particularly those related to capital offences, conform to the minimum procedural guarantees contained in article 14 of the International Covenant on Civil and Political Rights, including the right to a fair and public hearing by a competent, independent and impartial tribunal, the presumption of innocence, the right to adequate legal assistance and the right to review by a higher tribunal; (c) To ensure that the notion of "most serious crimes" does not go beyond intentional crimes with lethal or extremely grave consequences and that the death penalty is not imposed for non-violent acts such as financial crimes, non-violent religious practice or expression of conscience and sexual relations between consenting adults; (d) Not to enter any new reservations under article 6 of the Covenant which may be contrary to the object and the purpose of the Covenant and to withdraw any such existing reservations, given that article 6 enshrines the minimum rules for the protection of the right to life and the generally accepted standards in this area; (e) To observe the safeguards guaranteeing protection of the rights of those facing the death penalty and to comply fully with their international obligations, in particular with those under article 36 of the 1963 Vienna Convention on Consular Relations, particularly the right to receive information on consular assistance within the context of a legal procedure; (f) Not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person; (g) Not to execute any person as long as any related legal procedure, at the international or at the national level, is pending; 5. Calls upon all States that still maintain the death penalty: (a) Progressively to restrict the number of offences for which the death penalty may be imposed; (b) To establish a moratorium on executions, with a view to completely abolishing the death penalty;

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(c) To make available to the public information with regard to the imposition of the death penalty; (d) To provide to the Secretary-General and relevant United Nations bodies information relating to the use of capital punishment and the observance of the safeguards guaranteeing protection of the rights of those facing the death penalty as contained in Economic and Social Council resolution 1984/50; 6. Calls upon States which no longer apply the death penalty but maintain it in their legislation to abolish it; 7. Requests States that have received a request for extradition on a capital charge to reserve explicitly the right to refuse extradition in the absence of effective assurances from relevant authorities of the requesting State that capital punishment will not be carried out; 8. Requests the Secretary-General to continue to submit to the Commission, at its fifty-ninth session, in consultation with Governments, specialized agencies and intergovernmental and non-governmental organizations, a yearly supplement on changes in law and practice concerning the death penalty worldwide to his quinquennial report on capital punishment and implementation of the Safeguards guaranteeing protection of the rights of those facing the death penalty, paying special attention to the imposition of the death penalty against persons younger than 18 years of age at the time of the offence; 9. Decides to continue consideration of the matter at its fifty-ninth session under the same agenda item.

56th meeting 25 April 2002

[Adopted by a recorded vote of 25 votes to 20, with 8 abstentions. E/2002/23 - E/CN.4/2002/200, see chap. XVII.]

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BANGALORE PRINCIPLES Between 24 and 26 February 1988 there was convened in Bangalore, India, a high level judicial colloquium on the Domestic Application of International Human Rights Norms. The Colloquium was administered by the Commonwealth Secretariat on behalf of the Convenor, the Hon Justice P N Bhagwati (former Chief Justice of India), with the approval of the Government of India, and with assistance from the Government of the State of Karnataka, India. The participants were: Australia - Justice Michael D Kirby, CMG India - Justice P N Bhagwati (Convenor) India - Justice M P Chandrakanataraj Urs Malaysia - Tun Mohamed Salleh Bin Abas Mauritius - Justice Rajsoomer Lallah Pakistan - Chief Justice Muhammad Haleem Papua New Guinea - Deputy Chief Justice Sir Mari Kapi Sri Lanka - Justice P. Ramanthan United Kingdom - Recorder Anthony Lester, QC United States of America - Judge Ruth Bader Ginsburg Zimbabwe - Chief Justice E. Dumbutshena There was a comprehensive exchange of views and full discussion of expert papers. The Convenor summarised the discussions in the following paragraphs:

1. Fundamental human rights and freedoms are inherent in all humankind and find expression in constitutions and legal systems throughout the world and in the international human rights instruments.

2. These international human rights instruments provide important guidance in cases concerning fundamental human rights and freedoms.

3. There is an impressive body of jurisprudence, both international and national, concerning the interpretation of particular human rights and freedoms and their application. This body of jurisprudence is of practical relevance and value to judges and lawyers generally.

4. In most countries whose legal systems are based upon common law, international conventions are not directly enforceable in national courts unless their provisions have been incorporated by legislation into domestic law. However, there is a growing tendency for national courts to have regard to these international norms for the purpose of deciding cases where the domestic law - whether constitutional, statute or common law - is uncertain or incomplete.

5. This tendency is entirely welcome because it respects the universality of fundamental human rights and freedoms and the vital role of an independent judiciary in reconciling the competing claims of individuals and groups of persons with the general interests of the community.

6. While it is desirable for the norms contained in the international human rights instruments to be still more widely recognised and applied by national courts, this process must take fully into account local laws, traditions, circumstances and needs.

7. It is within the proper nature of the judicial process and well-established judicial functions for national courts to have regard to international obligations which a country undertakes - whether or not they have been incorporated into domestic law- for the purpose of removing ambiguity or uncertainty form, national constitutions, legislation or common law.

8. However, where national law is clear and inconsistent with the international obligations of the State concerned in common law countries the national court is obliged to give effect to national law. In such cases the court should draw such inconsistency to the attention of the appropriate authorities since the supremacy of national law in no way mitigates a breach of an international legal obligation, which is undertaken by a country.

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9. It is essential to redress a situation where, by reason of traditional legal training, which has tended to ignore the international dimension, judges and practising lawyers are often unaware of the remarkable and comprehensive developments of statements of international human rights norms. For the practical implementation of these views it is desirable to make provision for appropriate courses in universities and colleges, and for lawyers and law enforcement officials; provision in libraries of relevant materials; promotion of expert advisory bodies knowledgeable about developments in this field; better dissemination of information to judges lawyers and law enforcement officials; and meetings for exchanges of relevant information and experience.

10. These views are expressed in recognition of the fact that judges and lawyers have a special contribution to make in the administration of justice in fostering universal respect for fundamental human rights and freedoms.

Bangalore Karnataka State, India 26 February 1988