16 July 2015
Human Rights Council
Agenda items 2 and 3
Annual report of the United Nations High Commissioner
for Human Rights and reports of the Office of the
High Commissioner and the Secretary-General
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Capital punishment and the implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty
Yearly supplement of the Secretary-General to his quinquennial report on capital punishment
The present report is submitted pursuant to resolution 26/2 of the Human Rights Council. It examines possible consequences of the imposition and application of the death penalty on the enjoyment of various human rights, including human dignity, the right to life, the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment, the right to a fair trial and the right to equality and non-discrimination. It also examines the impact on the enjoyment of human rights by children of parents who are sentenced to death or executed, and other individuals associated with sentenced persons, and the consequences of the lack of transparency in the imposition and application of the death penalty.
I. Introduction 3
II. Consequences of the imposition and application of the death penalty on the enjoyment
of the human rights of those facing the death penalty 3
A. Human dignity 3
B. Right to life 5
C. Right to a fair trial 7
D. Right not to be subjected to torture and other cruel, inhuman or degrading
treatment or punishment 9
E. Right to equality and non-discrimination 10
III. Consequences arising at various stages of the imposition and application of the
death penalty on the enjoyment of the human rights of other affected persons 13
A. Children of parents sentenced to death or executed 13
B. Defence lawyers 14
C. Prisons officials, including medical personnel 14
IV. Consequences of the lack of transparency in the application and imposition
of the death penalty on the enjoyment of human rights 15
A. Right to a fair trial and due process 15
B. Prohibition of torture and other cruel, inhuman and degrading treatment 16
C. Right to information 16
V. Conclusions and recommendations 17
1. The Human Rights Council, in its resolution 26/2, requested the Secretary-General to dedicate the 2015 annual supplement to his quinquennial report on capital punishment to the consequences arising at various stages of the imposition and application of the death penalty on the enjoyment of the human rights of those facing the death penalty and other affected persons.
2. On behalf of the Secretary-General, in March 2015, the Office of the High Commissioner for Human Rights sent notes verbales to various stakeholders, including States, international, regional and intergovernmental bodies, national human rights institutions and non-governmental organizations, requesting relevant information to enable the Secretary-General to prepare his report. Information received has been included in the present report to the extent possible.1
3. The Secretary-General draws the attention of the Human Rights Council to his ninth report on capital punishment and implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty (E/2015/49), which finds that the marked trend towards abolition and restriction of the use of capital punishment in most countries continues. Attention is also drawn to other recent reports outlining various human rights consequences of the use of the death penalty.2
4. The present report examines possible consequences of the imposition and application of the death penalty on the enjoyment of various human rights, including human dignity, the right to life, the right to freedom from torture or other cruel, inhuman or degrading treatment or punishment, the right to a fair trial and the right to equality and non-discrimination. It also examines the impact on the enjoyment of human rights by children of parents who are sentenced to death or executed, and other individuals associated with sentenced persons. It further examines the human rights consequences of the lack of transparency in the imposition and application of the death penalty.
II. Consequences of the imposition and application of the death penalty on the enjoyment of the human rights of those facing the death penalty
A. Human dignity
5. The Universal Declaration of Human Rights of 1948 provides that 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. The dignity of the human person is inherent in any right protected by international human rights law. Dignity lends real meaning to human rights, and as such is inherent in any right protected by international human rights law.
6. In the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, which was adopted in 1989, States parties recognize that abolition of the death penalty contributes to enhancement of human dignity. Furthermore, the General Assembly has justified, in resolutions adopted during the past eight years and supported by an increasing majority of Member States, its calls for a moratorium on executions with a view to abolishing the death penalty, by stating that the use of the death penalty undermines human dignity (see resolutions 62/149, 63/168, 65/206, 67/176 and 69/186). In its guidelines on the death penalty, the European Union considers that the death penalty constitutes a serious violation of human rights and human dignity.3 The Community of Portuguese-speaking Countries stated that the death penalty is an intolerable and inhuman attack on human dignity and a violation of human rights.4 Forty-two member States of the Council of Europe also pointed out that “the death penalty is an intolerable affront to human dignity, and goes hand in hand with numerous violations of the human rights of the condemned and their families”.5
7. In their submissions relating to the present report, as well as policy statements issued at various forums, several States referred to human dignity as a key argument for the abolition of the death penalty. For instance, Albania stated that “this kind of punishment is not compatible with human rights principles and constitutes a direct insult to human dignity”; Canada viewed that “the death penalty is incompatible with respect for human dignity and the value of human life”; the Holy See explained that its abolitionist position is “framed within the proper ethical context of defending the inviolable dignity of the human person and the role of the legitimate authority to defend in a just manner the common good of society”; Namibia indicated that “the death penalty undermines human dignity, which is inherent to every human being”; Portugal noted that “it opposes the death penalty in all circumstances, as it represents an irreversible loss of the right to life and a gross violation of human rights, and it is an unjustified attack on human dignity”; and the United Kingdom of Great Britain and Northern Ireland expressed the view that “the death penalty undermines human dignity”.
8. The constitutions of several countries stipulate that the death penalty undermines human dignity. For instance, the Constitution of Côte d’Ivoire recognizes the need to respect human dignity and prohibits “any punishment leading to the deprivation of human life”. The Constitution of Finland states that “no one shall be sentenced to death, tortured or otherwise treated in a manner violating human dignity”. The Interim Constitution of Nepal provides that “every person shall have the right to live in dignity, and no law shall provide for the death penalty”.
9. A significant number of national courts have also referred to human dignity in relation to the death penalty. In Gregg v. Georgia, Justice Brennan of the Supreme Court of the United States of America filed a dissenting opinion stating that “the fatal constitutional infirmity in the punishment of death is that it treats members of the human race as nonhumans, as objects to be toyed with and discarded. It is thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity”.6 The Canadian Supreme Court has recognized that capital punishment constitutes a serious invasion of human dignity, and several judges expressed the opinion that the death penalty “is the supreme indignity to the individual, the ultimate corporal punishment, the final and complete lobotomy and the absolute and irrevocable castration”.7 The Hungarian Constitutional Court has held that capital punishment imposes a limitation on the essential content of the fundamental rights to life and human dignity, eliminating them irretrievably. The Court stressed the relationship between the rights to life and dignity, and the absolute nature of these two rights, which together were the source of all other rights.8 In the Makwanyane case, the South African Constitutional Court found that the death penalty was unconstitutional and observed that “the rights to life and dignity are the most important of all human rights and the source of all other personal rights … By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others. And this must be demonstrated by the State in everything that it does, including the way it punishes criminals”.9
B. Right to life
10. Article 3 of the Universal Declaration of Human Rights states that everyone has the right to life, liberty and security of person, while article 6 (1) of the International Covenant on Civil and Political Rights provides that every human being has the inherent right to life, which is to be protected by law, and that no one is to be arbitrarily deprived of his life. In its general comment No. 6 (1982) on the right to life, the Human Rights Committee described the right to life as the supreme right. The Special Rapporteur on extrajudicial, summary or arbitrary execution referred to it as “the ultimate metaright, since no other right can be enjoyed without it” (see A/67/275, para. 12) and “the most important and basic of human rights. It is the fountain from which all human rights spring. If it is infringed, the effects are irreversible” (see E/CN.4/1983/16, para. 22).
11. More than 40 years ago, in December 1971, the General Assembly, in its resolution 2857 (XXVI), stated that in order fully to guarantee the right to life, provided for in article 3 of the Universal Declaration of Human Rights, the main objective to be pursued was that of progressively restricting the number of offences for which capital punishment might be imposed, with a view to the desirability of abolishing that punishment in all countries. The international move towards abolition gained new impetus with the adoption in 1989 of the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, which to date has been ratified by 81 States.
12. The drafters of the International Covenant on Civil and Political Rights already paved the way towards the abolition of the death penalty in 1966 by mentioning the death penalty as an exception to the right to life, which should in no way be “invoked to delay or to prevent the abolition of capital punishment” (art. 6 (6)) and by establishing stringent conditions under which it could be used. Trends with regard to the implementation of the stringent conditions contained in article 6 (2–5) can be gleaned from recent quinquennial and annual reports of the Secretary-General on the use of the death penalty (see, for example, E/2010/10 and E/2015/49).
13. The Council of Europe has adopted two instruments prohibiting the use of capital punishment: protocols No. 6 (1983) and No. 13 (2002) to the European Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty. Article 2 of the Charter of Fundamental Rights of the European Union also provides that no one shall be condemned to the death penalty, or executed. The Protocol to the American Convention on Human Rights to Abolish the Death Penalty was adopted in 1990. While the African Charter on Human and Peoples’ Rights, which was adopted in 1981, does not make any specific reference to the death penalty, the African Commission is in the process of developing an optional protocol to the Charter on the abolition of the death penalty in Africa.
14. About half of the 102 countries and territories in the world that, to date, have abolished the death penalty for all crimes, enshrined its prohibition in their constitutions, often making explicit the link with the rights to life and physical integrity.10 For instance, the Constitution of Armenia states that “everyone shall have a right to life”, and “no one shall be condemned to the death penalty or executed”; the Constitution of the Plurinational State of Bolivia provides that “every person has the right to life and physical, psychological and sexual integrity” and “the death penalty does not exist”; the Constitution of Cambodia holds that “everybody shall have the right to life, freedom and personal security. Capital punishment is prohibited”; the Constitution of Colombia stipulates that “the right to life is inviolable” and “there will be no death penalty”; the Constitution of Côte d’Ivoire states that “the rights of the human person are inviolable” and “any punishment leading to the deprivation of human life is forbidden”; the Constitution of Honduras states that “the right to life is inviolable, and the death penalty is prohibited”; and the Constitution of Kyrgyzstan states that “everyone shall have an inalienable right to life” and “no one may be arbitrarily deprived of life; the death penalty is prohibited”.
15. Furthermore, several national courts have found the death penalty to violate the right to life. The Albanian Constitutional Court abrogated the death penalty as incompatible with its 1998 Constitution, stating that “the death penalty is a denial of the right to life and constitutes inhuman and cruel punishment”.11 The Hungarian Constitutional Court declared that the death penalty violates the “inherent right to life” provided under article 54 of the country’s Constitution, and thereby abolished the death penalty for all crimes in Hungary.12 The Constitutional Court of Lithuania declared that the Criminal Code provision on the death penalty contradicted the Constitution, which stipulates that the right to life shall be protected by law.13 The South African Constitutional Court also used the right to life argument as reasoning for declaring that the death penalty violated the Constitution.14 The Constitutional Court of Ukraine declared the death penalty unconstitutional and the laws providing for it void, by referring to the right to life. It noted that, unlike the International Covenant on Civil and Political Rights, the Ukrainian Constitution does not explicitly allow for the death penalty as an exception to the right to life.15 Several other States have also referred to the right to life as key for the abolition of the death penalty (see, for example, A/63/293, para. 17 and A/HRC/27/26, para. 25).16
16. With regard to States in which the death penalty is still used, international human rights law, including article 6 (2) of the International Covenant on Civil and Political Rights, “imposes stringent requirements that must be met for judicial killing not to be regarded as an arbitrary deprivation of life and therefore unlawful” (see A/67/275, para. 13). Article 6 (2) of the Covenant requires that, in countries that have not yet abolished the death penalty, the application of the death penalty be limited to the “most serious crimes”. This term has been interpreted to mean that the death penalty should only be applied to the crime of intentional killing. The Human Rights Committee has repeatedly stressed that the use of the death penalty for drug-related crimes does not meet the threshold of the most serious crimes.17 However, the death penalty continues to be applied in 33 countries or territories for drug-related crimes. Some States also continue to use the death penalty for other crimes or acts not involving intentional killing, such as consensual sexual acts, economic and political crimes, robbery, blasphemy, witchcraft and sorcery.
17. The Human Rights Committee has also concluded that mandatory death sentences are not compatible with the most serious crimes. According to the Human Rights Committee, laws that impose the death penalty without any possibility of the defendant’s personal circumstances or the circumstances of the particular offence being taken into account constitute violations of the right to life under the Covenant.18 The Inter-American Court of Human Rights19, the African Commission on Human and Peoples’ Rights20 and the national courts in Bangladesh,21 India,22 Kenya23, Malawi24 and Uganda25 have also declared that the mandatory death penalty is incompatible with the right to life.
18. The prohibition of executions for crimes committed by persons under the age of 18 is provided in several international and regional human rights treaties, in particular in article 6 of the International Covenant on Civil and Political Rights and article 37 of the Convention on the Rights of the Child. The prohibition on the execution of pregnant women is also set out in article 6 of the International Covenant on Civil and Political Rights. In its resolution 69/186, the General Assembly calls on all States not to impose capital punishment for offences committed by persons below 18 years of age, on pregnant women or on persons with mental or intellectual disabilities. Moreover, in its resolution 1989/64, the Economic and Social Council recommended that States establish a maximum age beyond which a person may not be sentenced to death or executed.
C. Right to a fair trial
19. The death penalty may be carried out only pursuant to a final judgement rendered by a competent court after a legal process that provides 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.
20. In July 2007, the Human Rights Committee adopted its general comment No. 32 (2007) on article 14: right to equality before the courts and tribunals and to a fair trial, which details State parties’ obligations under article 14 of the International Covenant on Civil and Political Rights, and reaffirms that scrupulous respect of the guarantees of a fair trial is particularly important in trials leading to the imposition of the death penalty, and that, therefore, the imposition of a death sentence following a trial in which the provisions of article 14 of the Covenant have not been respected constitutes a violation of the right to life.
21. The death penalty is of particular concern when imposed by military courts and tribunals, especially on civilians. The Working Group on Arbitrary Detention has concluded that military justice systems should be prohibited from imposing the death penalty under all circumstances (see E/CN.4/1999/63, para. 80).
22. Recently, a new phenomenon of sentencing large groups of individuals in mass trials has emerged and led to major concerns that such mass trials violate international human rights standards regarding fair trial guarantees. In particular, those trials appear to have been marred by procedural irregularities, including a lack of adequate, timely access to lawyers and instances of trials in absentia, and a lack of respect for the presumption of innocence (see A/HRC/27/23 and Corr.1, paras. 43–53). Pursuant to general comment No. 32 (2007) of the Human Rights Committee, the presumption of innocence, which is fundamental to the protection of human rights, imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of a criminal act must be treated in accordance with that principle.
23. Effective assistance by defence counsel is an important element in the right to a fair trial in capital cases. Article 14 (3) (d) of the International Covenant on Civil and Political Rights requires States parties to provide legal assistance to indigent defendants “in any case where the interests of justice so require”. The Human Rights Committee has observed that “it is axiomatic that legal assistance be available in capital cases” and concluded that “the absence of counsel constituted unfair trial”.26 The Committee against Torture has also urged States parties to guarantee effective assistance by legal counsel for death row inmates at all stages of proceedings.27 In December 2012, the General Assembly adopted the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, recognizing the right to legal aid for persons facing the death penalty at all stages of the criminal justice process.28
24. Article 6 (4) of the International Covenant on Civil and Political Rights states that anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. It also states that amnesty, pardon or commutation of the sentence of death may be granted in all cases. Therefore, national laws must provide the possibility of, and corresponding procedure for, granting amnesty, pardon and commutation of death sentences for humanitarian and other reasons.
D. Right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment
25. In his 2009 report, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment explored whether the death penalty was compatible with the prohibition of cruel, inhuman or degrading punishment under international law (A/HRC/10/44). He noted that the interpretation of legal provisions was subject to change over time, as had been the case with the prohibition of corporal punishment. The prohibition of corporal punishment had evolved to the point that it was now considered a direct assault on the dignity of a person and should be qualified by all relevant human rights bodies as cruel, inhuman or degrading punishment. He concluded that maintaining the distinction between a dynamic interpretation that finds that corporal punishment is prohibited, while upholding that capital punishment is compatible with international law, was increasingly difficult.
26. The Special Rapporteur has concluded that “a new approach is needed as there is evidence of an evolving standard within international bodies and a robust State practice to frame the debate about the legality of the death penalty within the context of the fundamental concepts of human dignity and the prohibition of torture and cruel, inhuman or degrading treatment or punishment. This evolving standard, along with the resulting illegality of the death penalty under such prohibition, is developing into a norm of customary law, if it has not already done so” (see A/67/279, para. 74).
27. In examining whether the death penalty per se violates the prohibition of torture or other cruel, inhuman or degrading treatment or punishment, recent jurisprudence should be taken into consideration. For example, in 2013, the European Court of Human Rights ruled that “whole life” sentences with no possibility of review and no prospect of release constituted inhuman and degrading treatment and punishment, and were in breach of the prohibition of torture and ill-treatment.29
28. In statements before various international forums, several States and regional bodies have indicated that the death penalty is a violation of the prohibition of torture or other cruel, inhuman and degrading treatment or punishment. Bulgaria stated that it considered the death penalty to be an extreme form of physical and psychological violence for human beings and as such, it constituted cruel, inhuman and degrading treatment or punishment. Denmark expressed the view that the death penalty was brutal and inhuman, no matter how cruel the offence. Finland considered the death penalty a cruel and inhuman form of punishment. Italy classified capital punishment as inhuman treatment. Mongolia justified the abolition of capital punishment by referring to the degrading character of the death penalty. Slovenia considered that the death penalty constituted cruel, inhuman and degrading treatment and a violation of international law. Spain held that the death penalty was cruel and inhuman treatment. The European Union stated that it found the death penalty to be cruel and inhuman, representing an unacceptable denial of human dignity and integrity.30
29. National courts have also expressed similar views. For instance, in the case of People v. Anderson, California Supreme Court in the United States of America found that “the cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out. Penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture”.31 In 2001, in the case United States v. Burns, the Canadian Supreme Court stated that capital punishment engaged the underlying values of the prohibition against cruel and unusual punishment.32 Furthermore, the Constitutional Courts of Albania, Hungary, Lithuania, South Africa and Ukraine have also found that the death penalty per se violates the prohibition of cruel, inhuman or degrading treatment.
30. States that still use the death penalty do not have unfettered discretion in deciding about the manner in which it is carried out. They should comply with requirements emanating from the absolute prohibition of torture and other cruel, inhuman or degrading treatment under international human rights law. In practice, capital punishment today often leads to violations of this prohibition, either because of the death row phenomenon, or the method of execution.
31. The Secretary General and special procedures mandate holders have extensively discussed this issue in recent reports. They have described circumstances that generally go hand in hand with the death row phenomenon, including the lengthy and anxiety-ridden wait for uncertain outcomes, isolation, drastically reduced human contact and the physical conditions in which some inmates are held. The Human Rights Committee has recognized the death row phenomenon as a possible breach of article 7 of the International Covenant on Civil and Political Rights.33 Several regional courts have also confirmed the existence and destructive nature of the death row phenomenon.34
32. The Human Rights Committee, in its general comment No. 20 (1992) on article 7 (prohibition of torture or other cruel, inhuman or degrading treatment or punishment) also recognized that, when the death penalty is imposed, it must be carried out in a manner that causes “the least possible physical and mental suffering” (para. 6). Having examined relevant international, regional and national jurisprudence on various methods of execution, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment concluded that there was a growing trend towards scrutiny of all methods of execution that had to date been considered as not causing severe pain and suffering. He found no categorical evidence that any method of execution currently in use complied with the prohibition of torture and cruel, inhuman or degrading treatment. Even if the required safeguards (Economic and Social Council resolution 1984/50, annex) were respected, all methods of execution currently used could inflict inordinate pain and suffering (see A/67/279, paras. 31–40).