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United Nations

A/HRC/27/23



General Assembly

Distr.: General

30 June 2014


Original: English
Human Rights Council

Twenty-seventh session

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


Question of the death penalty

Report of the Secretary-General

Summary

Pursuant to Human Rights Council decision 18/117, the present report is submitted in order to update previous reports on the question of the death penalty. The report confirms that the trend towards the universal abolition of the death penalty is continuing. However, numerous concerns remain with regard to the lack of respect for international human rights norms and standards in States that still impose the death penalty. As requested in Human Rights Council resolution 22/11, the report also includes information on the human rights of children of parents sentenced to the death penalty or executed.



Contents


Paragraphs Page

I. Introduction 1–3 3

II. Changes in law and practice 4–21 3

A. Member States that have abolished the death penalty for all crimes 5 3

B. Member States that have restricted the scope of the death penalty or are
limiting its use 6–11 3

C. Member States that have ratified or committed to ratifying international


instruments providing for the abolition of the death penalty 12–14 5

D. Member States that have introduced a moratoriums on or suspension of executions 15 5

E. Member States that have reintroduced the use of the death penalty,
extended its scope or resumed executions 16–21 5

III. Making information on the use of the death penalty available 22–25 6

IV. Imposition of the death penalty 26–27 7

V. Application of safeguards guaranteeing protection of the rights


of those facing the death penalty 28–58 8

A. Restriction of the use of the death penalty to “most serious crimes” 28–42 8

B. Fair trial guarantees 43–53 10

C. Access to consular services for non-citizens 54–57 13

VI. Use of the death penalty against children, persons with mental or intellectual
disabilities and other vulnerable groups 58–64 14

A. Children 58–61 14

B. Persons with mental or intellectual disabilities 62–64 15

VII. Human rights of children of parents sentenced to the death penalty or executed 65–71 16



VIII. Conclusions 72–75 18

I. Introduction

  1. Pursuant to Human Rights Council decision 18/117, the present report is submitted to update previous reports on the question of the death penalty, including the last quinquennial report of the Secretary-General (E/2010/10 and Corr.1 and 2) and reports submitted to the Council (A/HRC/4/78, A/HRC/8/11, A/HRC/12/45, A/HRC/15/19, A/HRC/18/20, A/HRC/21/29 and A/HRC/24/18).

  2. Pursuant to Human Rights Council resolution 22/11, the report also includes information on the human rights of children of parents sentenced to the death penalty or executed.

  3. The report covers the period from June 2013 to May 2014 and is based on information received from States and other relevant sources, including national human rights institutions, United Nations agencies, international and regional intergovernmental bodies and non-governmental organizations. Attention is drawn to the forthcoming report of the Secretary-General to the General Assembly on a moratorium on the use of the death penalty, which will outline national and international efforts made towards the implementation of General Assembly resolution 67/176 on a moratorium.

II. Changes in law and practice

  1. Changes in law include new legislation abolishing or reinstating the death penalty, restricting it or expanding its scope, as well as ratification of international and regional human rights treaties that provide for the abolition of the death penalty. Changes in practice comprise mainly non-legislative measures, including executive and judicial measures, reflecting a new approach regarding the use of the death penalty.

A. Member States that have abolished the death penalty for all crimes

  1. Some 160 States have abolished or introduced a moratorium on the death penalty either in law or in practice, or have suspended executions.

B. Member States that have restricted the scope of the death penalty or are limiting its use

  1. In several de facto abolitionist States, as well as in States that continue to apply the death penalty, some noticeable initiatives restricting its use were recorded during the reporting period.

  2. In Antigua and Barbuda, the Offences against the Person (Amendment) Act, 2013 was amended to remove the mandatory imposition of the death penalty.1 Bangladesh abolished the death penalty for children by enacting the Children Act 2013.2

  3. In Benin,3 Comoros (A/HRC/26/11, para. 10), Mongolia4 and Suriname,5 draft laws to remove the death penalty from national laws are currently under consideration. Viet Nam reported that it is drafting amendments to its Penal Code to reduce the number of crimes punishable by death.

  4. In Sri Lanka, the Ministry of Justice appointed a special committee in October 2013 to review the Penal Code with a view to abolishing the death penalty. In June 2013, the National Assembly of Tajikistan established a working group to study public opinion on the death penalty. In China, the authorities passed a resolution affirming their intention to progressively reduce the number of crimes punishable by death. As part of its reporting to the Human Rights Council, China noted that it would continue its efforts in that regard in accordance with its economic and social development (A/HRC/25/5/Add.1, para. 186.17). Thailand reported that it intended to propose legislation to abolish the death penalty.6

  5. In many States, a constitutional reform process provided an opportunity for discussions on the death penalty and led to proposals to abolish or restrict the use of the death penalty. For example, in Zimbabwe, a new Constitution was adopted in 2013. It provides for the death penalty only for murder committed in aggravating circumstances and prohibits its imposition on women or on men who were under 21 or over 70 years at the time of the commission of the crime. In Ghana, the Constitutional Review Implementation Committee submitted a draft bill for the amendment of the 1992 Constitution, in which it recommended replacing the death penalty with life imprisonment.7 Sierra Leone indicated that the current review of its Constitution would present an opportunity for the examination of the question of the death penalty.8

  6. In some States, the judiciary restricted the scope of the use of the death penalty. For instance, the High Court of Botswana declared that the mandatory death penalty (sect. 203 of the Penal Code) was unconstitutional.9 In India, the Supreme Court issued a ruling recognizing that poverty, socioeconomic or psychic compulsions and undeserved adversities in life are some of the mitigating factors to be considered as a basis for commuting a convict’s death sentence to life imprisonment.10 The Supreme Court of India also adopted guidelines on clemency and the treatment of death row prisoners.11 In Uganda, sentencing guidelines for courts of judicature were issued with the aim of strengthening humane, predictable and consistent sentencing. The guidelines include special rules on mitigation and recommend the application of the death sentence only in exceptional circumstances.12

C. Member States that have ratified or committed themselves to ratifying international instruments providing for the abolition of the death penalty

  1. As of 30 May 2014, 81 States had ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.13

  2. During the reporting period, Bolivia (Plurinational State of), Gabon, Guinea-Bissau, El Salvador and Poland acceded to the Second Optional Protocol, and Angola signed it.

  3. During the universal periodic review process of the Human Rights Council, several States, including the Central African Republic (A/HRC/25/11, paras. 104.2–104.11), the Congo (A/HRC/25/16, paras. 111.9–111.18), Cambodia (A/HRC/26/16, para. 118.1 and 118.2), Comoros (A/HRC/26/11, paras. 110.1–110.10), Côte d’Ivoire (A/HRC/27/6, para. 128.8–128.9) and Equatorial Guinea (A/HRC/27/13, para. 134.38), accepted recommendations to ratify the Second Optional Protocol.

D. Member States that have introduced moratoriums on or suspension of executions

  1. The Government of Equatorial Guinea adopted presidential resolution 426 of 13 February 2014, in which it established a temporary moratorium on the application of the death penalty and expressly called for the imposition of prison terms instead of the death penalty. The Government of Pakistan decided to continue its moratorium on the use of capital punishment. The President of the United Arab Emirates ordered a general stay on executions. In the United States of America, the Governor of the State of Washington announced the introduction of a moratorium on the death penalty in February 2014.

E. Member States that have reintroduced the use of the death penalty, extended its scope or resumed executions

  1. During the reporting period, the scope of the death penalty was expanded in Algeria, Brunei Darussalam, Bahrain, Bangladesh, India, Maldives, Nigeria, Papua New Guinea, the Sudan and the United States of America.

  2. In Algeria, an amendment to the Penal Code was adopted in December 2013 to impose the death penalty for kidnappers of children if the victims were later found dead. Bahrain adopted a law that expanded the scope of capital punishment to include individuals responsible for bomb attacks that have caused casualties.14 Bangladesh enacted the Children Act 2013, which allows capital punishment for the authors of acts of terrorism using children. In Nigeria, laws were adopted making kidnapping a capital crime in the Bayelsa, Edo and Delta States.

  3. Brunei Darussalam adopted a new penal code that imposes the death penalty for numerous offences. The new code also introduces stoning to death as the specific method of execution for rape, adultery, sodomy and extramarital sexual relations.

  4. Papua New Guinea extended capital punishment to sorcery-related killings, aggravated rape and robbery with violence; it also approved new means of execution, including lethal injection, hanging, electrocution, firing squad and death by deprivation of oxygen.15 The Office of the United Nations High Commissioner for Human Rights (OHCHR) expressed regrets over Papua New Guinean legislative action to resume the use of the death penalty and noted that such measures marked a significant regression in the human rights progress that Papua New Guinea had made, and contradicted the global trend towards the abolition of the death penalty.16

  5. Maldives adopted a new regulation in April 2014 that provides for the imposition of the death penalty for intentional murder, even for individuals who are under 18. OHCHR expressed deep concern about the new regulation of Maldives to implement the death penalty, which ended the country’s 60-year moratorium on the death penalty.17

  6. In the United States of America, a law known as the Timely Justice Act was adopted in the State of Florida, which requires the Governor to sign a death warrant within 30 days of the conclusion of clemency review and to schedule execution within 180 days of the issuance of the warrant.

III. Making information on the use of the death penalty available

  1. In accordance with General Assembly resolution 67/176, States should make available relevant information with regard to their use of the death penalty, including accurate data on the number of persons sentenced to death, the number of persons on death row and the number of executions.

  2. During a panel discussion on the human rights of children of parents sentenced to the death penalty or executed, convened by the Human Rights Council in September 2013 at its twenty-fourth session, several States and non-governmental organizations, noted that the Human Rights Committee, the Committee against Torture, the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment had all expressed concerns regarding the lack of transparency surrounding executions. They also recalled that the human rights mechanisms viewed the failure to provide information concerning executions as amounting to a violation of international human rights law (see A/HRC/25/33, para. 25).

  3. However, as noted by the Secretary-General in previous reports (A/HRC/4/78, A/HRC/8/11, A/HRC/12/45, A/HRC/15/19, A/HRC/18/20, A/HRC/21/29 and A/HRC/24/18), it is difficult to obtain up-to-date and accurate global figures on the application of the death penalty, owing to the continued lack of transparency on the part of some Governments. In Belarus, China and Viet Nam, data on the use of the death penalty is classified as a State secret, the disclosure of which constitutes a criminal offence. Furthermore, difficulties in obtaining information are compounded in countries affected by conflict, where it may not be possible to obtain sufficient reliable information to confirm the number of executions and other relevant details.

  4. Furthermore, information regarding the actual date of executions is reportedly withheld from family members and lawyers of death row prisoners until the completion of the executions in some States, including Belarus, Indonesia, Japan, Malaysia, South Sudan and Viet Nam. The Special Rapporteur on the situation of human rights in Belarus expressed concern about the circumstances of the execution of a death row prisoner in April 2014. Reportedly, the date of his execution was not known to his family members and lawyers, who only learned about it after the sentence had already been carried out. The Special Rapporteur noted that the way the death penalty was carried out in that case amounted to inhuman treatment.18 During the universal periodic review process of the Human Rights Council, Botswana accepted the recommendation to provide information to concerned families, so that they know in advance the date of execution of their relatives (A/HRC/23/7 and Corr.1, para. 115.60).

IV. Imposition of the death penalty

  1. During the reporting period, executions were carried out in at least 22 States. Some States resumed executions19 after a few years’ suspension. In his report to the Human Rights Council (A/HRC/25/26) on the situation of human rights in the Islamic Republic of Iran, the Secretary-General expressed his concern at the sharp rise in executions in that country. He noted that the new Government continued the previous administrations’ heavy reliance on the death penalty to combat crimes (see also A/HRC/23/47/Add.5). A significant increase in the number of executions was also reported in Iraq for individuals convicted under the Anti-Terrorism Law.20 The United Nations Assistance Mission in Iraq and the United Nations High Commissioner for Human Rights have repeatedly and publicly reported that the international safeguards protecting the rights of those facing the death penalty are not implemented in the country.21

  2. Despite its recent amendments to criminal laws and procedures, aimed at restricting the application of the death penalty, China, according to some sources, has continued to execute thousands of individuals annually.22

V. Application of safeguards guaranteeing protection of the rights of those facing the death penalty

A. Restriction of use of the death penalty to “most serious crimes”

  1. In accordance with article 6, paragraph 2, of the International Covenant on Civil and Political Rights, States that have not yet abolished the death penalty should only impose it for the “most serious crimes”. In international human rights jurisprudence, that term has been interpreted as allowing the death penalty to be applied only to the crime of murder or intentional killing.23 However, the death penalty continues to be applied in some countries for crimes or acts not involving intentional killings, such as “drug-related offences”, “consensual sexual acts”, economic and political crimes, robbery, blasphemy, witchcraft and sorcery.

1. Use of the death penalty for “drug-related offences”

  1. Drug-related offences do not meet the threshold of “most serious crimes” (see A/50/40, para. 449, and A/55/40 (Vol. I), para. 464). There is no persuasive evidence that the use of the death penalty is a greater deterrent than other methods of punishment in eradicating drug trafficking or other drug-related offences. Nevertheless, 32 countries or territories24 continue to impose the death penalty for drug-related offences in their legislation. In some countries, drug offences account for the majority of death sentences handed down and executions carried out.

  2. Human rights treaty bodies continue to address the issue of the use of the death penalty for drug crimes. For instance, the Human Rights Committee recommended that Indonesia review its legislation to ensure that crimes involving narcotics are not punishable by death (CCPR/C/IDN/CO/1, para. 10).

  3. The International Narcotics Control Board discussed the imposition of the death penalty for drug-related offences at its 109th session, held in February 2014. Subsequently, in a note verbale addressed to all Member States issued on March 2014, the Board encouraged States that still imposed the death penalty for drug-related offences to abolish that punishment.

2. Use of the death penalty for consensual sexual acts between adults

  1. The use of the death penalty for acts in connection with consensual sexual relations and activities do not meet the threshold of “most serious crimes.” At least 10 States25 continue to impose and carry out the death penalty in connection with actual or purported engagement in consensual sexual acts, such as “adultery” and “sodomy”. Laws criminalizing actual or purported engagement by adults in consensual sexual relations, including extramarital sex and premarital sex, contravene international human rights law and standards (see, for example, A/53/40 (Vol. I), para. 119).

  2. In addition, although the language of such laws may be gender neutral and may not appear to directly discriminate against women, in practice, their application and enforcement often disproportionately affect women’s enjoyment of their rights. Studies repeatedly demonstrate that women are more likely to be sentenced to death for such crimes, owing to deeply entrenched discriminatory societal attitudes and the biases against women suspected of adultery or of engaging in extramarital relationships among the judiciary and law enforcement officers (A/HRC/23/49/Add.5, para. 6).26

  3. Imposition of the death penalty for offences relating to consensual adult homosexual conduct continues to be provided for in the legislation of a few States. The Human Rights Committee expressed concerns that, in Mauritania, homosexuality is a crime punishable by death. Such punishment violates the provisions of the International Covenant on Civil and Political Rights (arts. 2, 6, 17 and 26) and the Committee recommended that Mauritania decriminalize homosexuality (CCPR/C/MRT/CO/1, para. 8). While reviewing a periodic report of the Islamic Republic of Iran, the Committee on Economic, Social and Cultural Rights expressed concern over the criminalization of consensual same-sex sexual activity and the possibility that convicted persons may be subject to the death penalty (E/C.12/IRN/CO/2, para. 7).

3. Use of the death penalty for blasphemy, apostasy and religious offences

  1. In some countries, conversion from Islam or the renunciation of Islam is considered apostasy and a capital crime. The death penalty has also been extended on the basis of sharia law to cases of blasphemy. According to international human rights jurisprudence, none of those crimes meets the threshold of “most serious crimes.” (CCPR/C/79/Add.85, para. 8).

  2. Twelve States have continued to impose the death penalty for the “crime” of apostasy: Afghanistan, the Islamic Republic of Iran, Malaysia,27 Maldives, Mauritania, Nigeria,28 Qatar, Saudi Arabia, Somalia, the Sudan, the United Arab Emirates and Yemen.29 Five States continued to allow capital punishment for blasphemy: Afghanistan, Brunei Darussalam, the Islamic Republic of Iran, Pakistan, Saudi Arabia and the United Arab Emirates. In four States, armed groups were also implementing sharia punishment, including death, for “offences” to religion: Al-Shabaab in Somalia, Boko Haram and other armed groups in Nigeria, the Taliban in Afghanistan and jihadist groups in the Syrian Arab Republic.

4. Use of the death penalty for “acts of terrorism”

  1. Serious concerns have been raised, including by United Nations human rights bodies and mechanisms, about the adoption and application in many States of legislation containing overly broad and vague definitions of terrorist offences. The High Commissioner for Human Rights has noted that such laws fail to comply with the principle of legality, as they do not provide reasonable notice of what actions they cover, or are so broad that they cover actions that either should not reasonably be deemed terrorist in nature or not considered to be crimes at all (A/HRC/22/26, paras. 21 and 34). In such cases, the application of the death penalty remains a serious concern, in particular where such acts do not meet the threshold of “most serious crimes”, and may amount to violations of article 6 of the International Covenant on Civil and Political Rights.

  2. Executions relating to acts of terrorism or crimes of a political nature were carried out in Bangladesh, Belarus, China, the Islamic Republic of Iran, Iraq, India, Somalia and the Sudan, and possibly in other countries. Furthermore, hundreds of death sentences were handed down, albeit not carried out, in terrorism-related cases in Algeria, Bangladesh, Egypt, Pakistan, Lebanon and Libya.

  3. Concerns have been raised over the adoption of new counter-terrorism legislation or the amendment of existing laws in Bahrain, Bangladesh, Nigeria and the Syrian Arab Republic which prescribe the death penalty for overly broad or vaguely defined “terrorist” activities.



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