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Report No. 262

(ii) Safeguards regarding capital punishment in international law

3.8.18 Resolutions by bodies of the United Nations, as well as comments and reports by UN special procedures, have also contributed to international law standards regarding the death penalty and essential safeguards where it is being used. The trend in most of these instruments is towards limiting the scope of the death penalty globally, and encouraging abolition where possible.

a. The ECOSOC Safeguards

3.8.19 The UN Economic and Social Council (ECOSOC) has issued several resolutions prescribing safeguards regarding how the death penalty should be imposed in countries where it is retained. These safeguards comprise important limitations to the scope and application of the death penalty in international law.

3.8.20 The first ECOSOC resolution titled "Safeguards guaranteeing protection of the rights of those facing the death penalty" was adopted in 1984,152 and contained the following nine safeguards:

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.

152 Safeguards guaranteeing protection of the rights of those facing the death penalty, Approved by Economic and Social Council resolution 1984/50 of 25 May 1984, available at:
http://www.ohchr.org/EN/ProfessionalInterest/Pages/DeathPenalty.aspx
(last viewed on 3.08.2015).

3.8.21 Two subsequent resolutions introduced additional safeguards.

3.8.22 A 1989 ECOSOC resolution added more safeguards, including encouraging transparency in the imposition of the death penalty (including publishing information and statistics on the issue); the establishment of a maximum age beyond which a person cannot be executed; and abolishing the death penalty "for persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution."153

153 Implementation of safeguards guaranteeing protection of the rights of those facing the death penalty, ECOSOC Resolution 1989/64, available at:
https://www.unodc.org/documents/commissions/CCPCJ/Crime_Resolutions/1980-1989/1989/ECOSOC/Resolution_1989-64.pdf
(last viewed on 3.08.2015).

3.8.23 In 1996, a third ECOSOC resolution154 encouraged states to ensure that each defendant facing a death sentence is given all guarantees to ensure a fair trial. It specifically urged states to ensure that that defendants who do not sufficiently understand the language used in court are fully informed of the charges against them and the relevant evidence, and that they had enough time to appeal their sentence and ask for clemency. It also asked states to ensure that officials involved in decisions to carry out an execution are fully informed of the status of appeals and petitions for clemency.

154 Safeguards guaranteeing protection of the rights of those facing the death penalty, ECOSOC Resolution 1996/15, at para 6, available at:
http://www.un.org/documents/ecosoc/res/1996/eres1996-15.htm
(last viewed on 3.08.2015).

b. Reports by the Special Rapporteur on extrajudicial, summary or arbitrary executions

3.8.24 Where the imposition and execution of a death sentence does not follow norms of international law, it can be considered an extrajudicial execution by the state, and the Special Rapporteur on extrajudicial, summary or arbitrary executions ('SR on EJEs') has, over time, commented on several aspects of the capital punishment debate.

3.8.25 For example, in 2006, the SR on EJE released a report on transparency in the use of the death penalty.155 In 2007, the SR on EJEs, in a survey of existing treaty obligations, jurisprudence, and statements by UN treaty bodies, said "the death penalty can only be imposed in such a way that it complies with the stricture that it must be limited to the most serious crimes, in cases where it can be shown that there was an intention to kill which resulted in the loss of life."156

155 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Transparency and the Imposition of the Death Penalty, E/CN.4/2006/53/Add.3 24 March 2006, available at:
http://daccess-ddsny.un.org/doc/UNDOC/GEN/G06/120/57/PDF/G0612057.pdf?OpenElement
(last viewed on 3.08.2015).

156 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/4/20, 29 January 2007, at para 53, available at:
http://daccess-ddsny.un.org/doc/UNDOC/GEN/G07/105/00/PDF/G0710500.pdf?OpenElement
(last viewed on 3.08.2015).

c. The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

3.8.26 The Special Rapporteur on torture has specifically discussed whether capital punishment can be considered cruel, inhuman or degrading punishment. In his report on the issue, the Special Rapporteur noted the developments in jurisprudence by international bodies, which had found that corporal punishment often amounted to CIDT, because of its impact on human dignity.

While the Special Rapporteur did not go so far as to say that death penalt.- probably the most extreme form of corporal punishmen.- always amounted to CIDT, he noted that the permissibility of the death penalty "is increasingly being challenged by obvious inconsistencies deriving from the distinction between corporal and capital punishment and by the universal trend towards the abolition of capital punishment."157

157 Para 47, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/10/44, 14 January 2009, at para 47, available at:
http://daccess-ddsny.un.org/doc/UNDOC/GEN/G09/103/12/PDF/G0910312.pdf?OpenElement
(last viewed on 3.08.2015).

3.8.27 The Special Rapporteur has also urged certain states to impose moratoriums on death sentences.158

158 See UNHCHR, UN experts urge Pakistan not to execute juveniles, 20 March 2015, available at:
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15729&La ngID=E
(last viewed on 3.08.2015); and US/Death penalty: UN experts call for federal moratorium as Boston bomber gets death sentence 26 June 2015, available at:
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16160&La ngID=E
(last viewed on 3.08.2015).



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