3. JUSTIFYING THE DEATH PENALTY
3.2 Adequate Review Mechanisms
The importance of fair trial mechanisms and due process in death penalty cases is a customary norm313 and must be “scrupulously observed”.314 The ECOSOC Safeguards state that “Capital punishment may only be carried out pursuant to a final judgment rendered by a competent court after a legal process which gives all possible safeguards to ensure a fair trial” equal to the standard
contained in Article 14 of the ICCPR.315 The right to pardon and appeal also form part of the
Safeguards as well as Article 14 of the ICCPR.316 For this reason, a large number of States raise their compliance with fair trial standards by citing the existence of safeguards such as the right to appeal and availability of clemency.
Antigua and Barbuda stated before the working group of the first cycle that it recognises the importance of checks and balances.317 The existence of safeguards and/or clemency was also
recognised by Bangladesh,318 Botswana,319 Eritrea,320 Gambia,321 India,322 Iraq,323 Japan,324 Lesotho,325 Libya,326 Maldives,327 Saint Kitts and Nevis,328 Swaziland,329 Thailand,330 Trinidad and Tobago,331 Uganda,332 Yemen,333 and Zimbabwe.334 The right to consular assistance is described by the Inter-American Commission as “a fundamental component of the due process standards”.335 It is for this
313 Schabas (2002), p.369.
314 E/2015/49, para.39.
315 ECOSOC Safeguards, para.5.
316 ECOSOC safeguards, paras 6-7.
317 A/HRC/WG.6/12/L.3, para.34.
318 A/HRC/11/18, para.62; A/HRC/WG.6/16/BGD/1, para.51.
319 A/HRC/WG.6/3/BWA/1, para.44.
320 A/HRC/WG.6/6/ERI/1, para.18.
321 A/HRC/WG.6/7/GMB/1, para.13; A/HRC/14/6, para.7; A/HRC/WG.6/20/GMB/1, paras 136-138;
A/HRC/28/6, p.5.
322 A/HRC/WG.6/13/IND/1, para.28.
323 Iraq National Report, 18 January 2010, A/HRC/WG.6/7/IRQ/1, para.115; A/HRC/14/14, para.11;
A/HRC/WG.6/20/IRQ/1, para.10.
324 A/HRC/8/44, para.9
325 A/HRC/WG.6/8/LSO/1, para.50; Lesotho Working Group, 16 June 2010, A/HRC/15/7, para.14; A/HRC/29/9, para.28.
326 Libya National Report, 24 August 2010, A/HRC/WG.6/9/LBY/1, para.91.
327 A/HRC/WG.6/22/MDV/1, para.59.
328 A/HRC/17/12, paras 11-12.
329 Swaziland National Report, 19 July 2011, A/HRC/WG.6/12/SWZ/1, para.73.
330 A/HRC/WG.6/12/THA/1, para.33.
331 A/HRC/WG.6/12/TTO/1, paras 50-52.
332 Uganda National Report, 22 July 2011, A/HRC/WG.6/12/UGA/1, paras 53, 57.
333 A/HRC/12/13, para.9.
334 A/HRC/WG.6/12/ZWE/1, para.47.
335 Inter-American Commission on Human Rights, as cited in E/2015/49, para.98.
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reason that the U.S., as part of the UPR working group of the first cycle, accepted a recommendation by Mexico to comply with the Avena decision of the ICJ.336
Given a general lack of transparency in states that apply the death penalty,337 it is difficult to
accurately assess whether or not such statements comply with reality. Within the UPR framework, a number of States did rely on the use of adequate review mechanisms, despite the fact that such mechanisms were either inadequate under intentional law, or simply not actually in existence. The fact that a State retains a mandatory death sentence, for example, would contradict justification of procedural fairness. The Human Rights Committee has delivered a numbers of decisions stating that the imposition of a mandatory death sentence is prohibited.338 Despite this, a number of States that utilise a mandatory death sentence stated within the UPR that the death penalty adhered to fair trial and due process standards. These States include, Malaysia,339 Singapore,340 Saudi Arabia,341
Gambia,342 Tanzania,343 Pakistan,344 Iran,345 Myanmar,346 and Kuwait.347 Guyana also stated that its use of the mandatory sentences applied to a small number of crimes.348 Furthermore, Singapore stated during the working group of the first cycle that there is no international consensus regarding the restriction of mandatory death sentences.349 The Special Rapporteur on extrajudicial, summary and arbitrary executions points to an increasing consensus among States that mandatory executions are an
“arbitrary deprivation of life”.350 The Special Rapporteur on torture has stated that it “violates due process and constitutes inhumane treatment.”351
A number of other States maintained that fair trial standards were utilised despite the absence of such standards in reality. The Human Rights Committee has expressed concern in relation Ethiopia’s fair trial standards.352 Despite this, Ethiopia stated at the working group of the first cycle that fair trial rights were in place.353 Egypt maintained during both cycles that fair trial procedures, including the
336 United States of America Working Group, 4 January 2011, A/HRC/16/11, para.55.
337 E/2015/49, para.30.
338 E/2015/49, para.39.
339A/HRC/WG.6/4/MYS/1/Rev.1, paras 89-90; A/HRC/WG.6/17/MYS/1, para.45.
340 A/HRC/18/11, para.87.
341 A/HRC/25/3, para.96; A/HRC/25/3/Add.1, para.14.
342 A/HRC/WG.6/7/GMB/1, para.13; A/HRC/14/6, para.7; A/HRC/WG.6/20/GMB/1, paras 136-138;
A/HRC/28/6, p.5.
343 A/HRC/WG.6/12/TZA/1, para.17.
344 A/HRC/8/42, para.47.
345 A/HRC/14/12/Add.1, para.18.
346 A/HRC/WG.6/10/MMR/1, para.37.
347 A/HRC/15/15, para.39. A/HRC/WG.6/21/KWT/1, para.39.
348 Guyana National Report, 19 January 2015, A/HRC/WG.6/21/GUY/1, para.33.
349 A/HRC/18/11, para.87.
350 A/67/275, paras. 61-65.
351 A/67/279, para 59.
352 HRC, Concluding Observations of the Human Rights Committee: Ethiopia, CCPR/C/ETH/CO/1, 19 August 2011, para.19.
353 Ethiopia Working Group, 4 January 2010, A/HRC/13/17, para.8.
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right to appeal were accorded.354 However, Egypt has recently conducted mass trials of civilians by military courts in relation to political crimes that are sometimes carried out in absentia.355 In response to recommendations during the UPR, Indonesia states that the death penalty was only carried out after all legal resorts are exhausted.356 As recently as April 2015 Indonesia is reported to have executed two prisoners despite outstanding legal challenges before the courts.357 Furthermore, China made a
number of statements regarding the right to appeal in open court, and increased evidentiary safeguards. 358 However, in reality China treats its death penalty statistics as a state secret, and the system does not meet international standards of transparency.359
The importance of death penalty’s compliance with internationally recognised fair trial standards is apparent in the number of statements made by States as part of the UPR process. Although it is difficult to establish the extent to which such statements comply with reality, a number of States relying on fair trial standards as part of the UPR do actually comply with international law.
3.2.1 Improved practice
Ensuring that States impose meaningful fair trial procedures and safeguards to the imposition of the death penalty is an effective way of ensuring incremental compliance with international standards.
Barbados received a recommendations regarding the abolition of the mandatory death penalty.360 Egypt rejected all recommendation regarding the abolition of the death penalty, however it did accept Belgium’s recommendation relating to ensuring that it respects the minimum standards relating to the death penalty.361 Iraq accepted the recommendations of Belgium362 and Canada363 to respect the minimum standards restricting the death penalty’s application. All of the above recommendations are examples effective recommendations that address contextual issues and are incremental and therefore more likely to be accepted.
354 A/HRC/WG.6/7/EGY/1, p.8; A/HRC/28/16, para.118.
355 Egypt – Amnesty International, 1 September 2009, p.5.
356 A/HRC/8/23/Add.1, para.10; A/HRC/21/7/Add.1, p.3.
357 CNN, Australia recalls ambassador after Indonesia executes prisoners, 29 April 2015, available at:
http://edition.cnn.com/2015/04/28/asia/indonesia-firing-squad-executions/
358 A/HRC/WG.6/4/CHN/1, para.44; A/HRC/WG.6/17/CHN/1, paras 44-45; China Working Group, 4 December 2013, A/HRC/25/5, para.84.
359 A/HRC/25/33, para 31; E/2015/49, para.119.
360 Barbados Working Group, 12 March 2013, A/HRC/23/11, para.102.69.
361 A/HRC/14/17, para.95.34.
362 A/HRC/14/14, para.81.48
363 A/HRC/14/14, para.81.47
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