Keeping up the fight against the death penalty and other inhuman treatment imposed on children

3.3.1 UPR recommendations strengthening the international legal framework

a strongsignalfortheabolitionofthedeathpenaltyforoffenCesCommittedbypersonsundertheageof 18 Despite its absolute prohibition enshrined in Article 37(a) of the UN CRC and Article 6 of the ICCPR, capital punishment for offences committed by persons under the age of 18 remained lawful in 13 countries at the beginning of UPR Cycle 3.¹⁰⁵

The prohibition of the death penalty for crimes committed by a person under 18 years old is the issue that triggered one of the highest numbers of CTAs since the start of the UPR, with 114 of a total 1,073 CTAs related to juvenile justice. The number of recommendations increased considerably between Cycle 1 and Cycle 2 (see Figure 2), and overall a total of 20 states were put in the spotlight.

In Cycle 1, eight states¹⁰⁶ received at least one recommendation about the death penalty against juveniles. All but one¹⁰⁷ accepted at least one recommendation.

In Cycle 2, 16 states received a recommendation related to the death penalty. Four had already received the recommendation at their first review,¹⁰⁸ and 12 received it for the first time.¹⁰⁹ Seven states accepted at least one of these recommendations. ¹¹⁰

A series of observations can be made. First, Iran received almost half of the recommendations on abolishing the death penalty for minors (45 CTAs). It was followed by Yemen (16 CTAs), Saudi Arabia (13 CTAs), Sudan (13 CTAs), Maldives (six CTAs rejected), Nigeria (four CTAs), the United States (two CTAs) and Tonga (two CTAs). The other states received one recommendation.¹¹¹ The high number of recommendations received by Iran is justified by the fact that it is the state that most

105 See n 48 above.

106 DPRK, Iran, Kenya, Niger, Qatar, Saudi Arabia, Sudan, the US and Yemen.

107 DPRK noted the recommendation received.

108 Iran, Saudi Arabia, Sudan and Yemen.

109 Bangladesh, Brunei, Burkina Faso, Central African Republic, Egypt, Malaysia, Maldives, Nigeria, Somalia, St Lucia, Tonga and the UAE.

110 Bangladesh, Brunei, Malaysia, Maldives, Somalia, St Lucia, Tonga and the UAE.

111 Bangladesh, Brunei, Burkina Faso, CAR, Egypt, Kenya, Malaysia, Niger, North Korea, Qatar, Somalia, Saint Lucia and the UAE.

actively sentences to death and executes persons for crimes committed under the age of 18 years old.¹¹²

Furthermore, the UPR has been an effective alert mechanism to point at regressive legislative reforms. Brunei¹¹³ and the Maldives¹¹⁴ changed their legislation after their first review and received accordingly a number of recommendations during their second cycle. Maldives attracted six

recommendations. Kuwait also changed its legislation and established the death penalty for offences committed while aged over 16, after its second UPR, in December 2016, but repealed these reforms in March 2017.

Additionally, as shown below (see paragraph 3.3.2), a call for the abolition of the death penalty for offences committed under 18 years old has more chance to be accepted than a call for a general abolition of the death penalty (ie, regardless of the age and crime). This has been true in the case of Egypt, which accepted a similar recommendation concerning children during its second UPR. Egypt’s child law prohibits the sentencing to death of children; however, concerns had been raised by the Committee about military trials.

For a number of states, the issue of the juvenile death penalty comes together with the establishment of a minimum age of criminal responsibility and/or the issue of discrimination based on gender or religion. As mentioned, the minimum age is associated with physical maturity and puberty under Sharia law. As a result, from 15 years old, and nine years old, respectively, boys and girls can be sentenced to death under Sharia law.

Other issues are legal pluralism, in countries such as Somalia, and the absence of a juvenile justice system, such as in Tonga.

Finally, some states differentiate between the age of responsibility and the age of sentencing. As per the books, children are protected and the sentence is executed only when they reach 18 years old.

It is therefore particularly important that recommending states specifically mention the prohibition of the death penalty ‘for offences committed by a person under 18 years old’. A common pitfall is to use formulations calling for the prohibition of the death penalty against ‘minors’ or ‘children’.

International human rights standards, and especially the UN CRC, set the prohibition of the death penalty for ‘crimes committed by persons under the age of 18 at the time of the offence’ as opposed to prohibiting executing children. Out of 89 CTAs addressing either the abolition of the death penalty imposed on minors or calling for a moratorium, 39 specifically referred to persons under 18 years old at the time of the offence, such as ‘[o]utlaw the death penalty for persons convicted of crimes committed before the age of 18, without exceptions, and implement a moratorium on all executions’ (Ireland to Iran - Cycle 2).

112 See Ensemble Contre la Peine de Mort and Iran Human Rights, ‘Annual Report on the Death Penalty in Iran’ (2017), 27.

113 CRIN, Inhuman Sentencing of Children in Brunei Darussalam (CRIN 2014), 1. Brunei enacted the Syariah penal code order in October 2013 that expands the forms of inhuman sentencing to which people may be sentenced for offences committed while under the age of 18. The Penal Code was to be fully enforced, including offences punishable by death, at the end of 2016.

114 CRIN, Inhuman Sentencing of Children in the Maldives (CRIN 2015), 1: ‘the current penal code was ratified by the president in April 2014 and came into force on 16 July 2015, instituting wide reaching reforms of Maldivian criminal law. Corporal punishment and the death penalty are lawful penalties for offences committed while under the age of 18.’

prohibitionoflifeimprisonmentwithorwithoutparole: realprogress

While recommendations addressing the issue of the death penalty imposed on minors correspond to the majority of CTAs made on inhuman sentencing imposed on children in general, other forms of harsh sentencing of children covered by UPR recommendations include life imprisonment, corporal punishment and mandatory sentencing. Seven recommendations on the withdrawal of reservations on this particular issue were also made.

Inhuman sentencing Number of CTAs Proportion of CTAs

accepted (%)

Death penalty 114 28.1

Prohibition of life imprisonment 23 26.1

Prohibition of life imprisonment 18 33

Prohibition of life imprisonment without parole 5 0

Prohibition of sentence to torture/corporal punishment 19 15.8

Mandatory sentences and proportionality 4 50

Reservations 7 14.3

All CTAs on inhuman sentencing 167 26.3

Table 14: CTAs addressing inhuman sentencing against children

Article 37 of the UN CRC prohibits the imposition of life imprisonment without possibility of release if the offence has been committed by persons under the age of 18 years. The Committee contends that, despite the possibility of release, life imprisonment makes it very difficult to achieve the aims of juvenile justice and therefore strongly recommends the abolishment of all forms of life imprisonment in cases of offences committed by persons under 18.¹¹⁵ Life imprisonment and lengthy sentences were qualified by the Special Rapporteur on Torture as grossly disproportionate and therefore cruel, inhuman or degrading when imposed on a child.¹¹⁶ Life imprisonment imposed on children that does not exclude parole is still a form of inhuman sentencing ‘through which a person is liable to be detained for the rest of his or her natural life’,¹¹⁷ and for which the judge has all the discretion power to decide on the possibility and moment of release. The Secretary-General therefore recommended to states to ensure that children are not sentenced to life imprisonment as an alternative to the death penalty.¹¹⁸

The problem is widespread. The most recent data shows that 67 states retained life imprisonment as a penalty for offences committed under the age of 18 years old, a further 49 permitted sentences of 15 years or longer and 90 permitted sentences of ten years or longer.¹¹⁹ Life imprisonment and lengthy prison sentences are not the preserve of the diminishing few; they can be found in the laws of the majority of states.¹²⁰

115 See n 9 above, para 77.

116 See n 51 above.

117 Ibid, 2.

118 OHCHR, ‘Question of the Death Penalty, Report of the Secretary-General’ (2016) UN Doc A/HRC/33/20, 14.

119 See n 52 above . 120 Ibid.

By focusing on a larger scale on life imprisonment in general, with 18 recommendations calling on 12 countries¹²¹ to ban life imprisonment for crimes committed by children, the UPR goes beyond the language of the UN CRC, which only refers to the prohibition of life imprisonment without parole. It contributes to raising and advancing international standards on juvenile justice and drawing additional attention to a form of inhuman sentencing on which international condemnation is often limited.¹²²

As such, the UPR corroborates General Comment No 10 of the Committee and follows here the General Assembly and the UNHRC, which have called on states to ‘consider repealing all other forms of life imprisonment (rather than life imprisonment without parole), for offences committed by persons under 18 years of age’.¹²³

3.3.2 Success and challenges: some country examples

abolitionofthedeathpenaltyforoffenCesCommittedbypersonsunder 18 yearsold

States retaining the death penalty for offences committed when the person was still a child are the hardest to push to a change. As commented by Riordan, ‘as the number of retentionist states decreases, only the most committed death penalty advocates remain’.¹²⁴

The issue of the death penalty therefore is by far the least accepted issue within the recommendations related to juvenile justice, with an overall acceptance rate of 28 per cent, compared with the mean 66 per cent acceptance rate of juvenile justice-related recommendations. This acceptance rate is slightly higher than the acceptance rate for recommendations on the death penalty for adults, which stands at 22 per cent.¹²⁵

Against this background, a relatively higher rate of acceptance of a UPR recommendation on the death penalty for children is already a success in itself.

Table 15 presents the different formulations and strategies used by recommending states when addressing the issue of the death penalty, with correlated various acceptance rates from 14 per cent to 34 per cent depending on the formulation. Eighty-eight CTAs generally include the idea of prohibiting the death penalty for children. Out of 88, 51 use the direct formulation to ‘abolish the death penalty…’, 17 use the exact language of the UN CRC, which states ‘do not impose death penalty for crimes committed’, and 14 use a gradual approach recommending the implementation of a moratorium with a view to abolishing the death penalty for children.

As expected, recommendations that call for the abolition of the death penalty regardless of the age of the person (‘general abolition’) have a lower acceptance rate than those calling only for the prohibition of the death penalty for offences committed under the age of 18 years old. Surprisingly,

121 Antigua and Barbuda, Argentina, Australia, Bangladesh, Brunei Darussalam, Dominica, the Netherlands, Niger, Nigeria, Saudi Arabia, Somalia, St Lucia and Trinidad and Tobago. The US was recommended to abolish life imprisonment ‘without parole’ insofar as it is the system in place in the country.

122 See n 52 above, 2.

123 UNGA Resolution, ‘Human Rights in the Administration of Justice’ (2012) UN Doc A/RES/67/166.

124 John Morrison Liam Riordan, ‘The Implacable Ritual, A Study Examining the Inertia of Death Penalty Abolition Within the Universal Periodic Review, Despite Tacit Support and Global Trend’ (2015) Master thesis, University of Leiden, 7.

125 Ibid, 7.

recommendations calling for the direct abolition of the death penalty have a greater acceptance rate than those calling for a moratorium.

CTAs addressing the death penalty Accepted Noted Total Proportion of

recommendations accepted (%) Abolish the death penalty for minors/do not impose the

death penalty for crimes committed by persons below the age of 18

23 45 68 34

Declare a moratorium with the aim of abolishing 2 12 14 14

Declare a moratorium 3 10 13 23

Abolish the death penalty in particular for minors 1 5 6 17

Limit the crimes punishable by the death penalty for minors

2 2 0

Commute sentences 3 6 9 33

Prohibit public executions 2 2 0

Mean 28

Table 15: CTAs addressing the death penalty for persons under 18 years at the time of the offence/

children

Looking at the impact on the ground, some states have taken action after accepting at least one of the recommendations related to the death penalty.

In Cycle 1, out of the seven states that accepted recommendations to abolish the death penalty for offences committed under 18 years old, Kenya¹²⁶ and Niger¹²⁷ effectively engaged in awareness campaigns and measures towards a general abolition. Niger has long been a de facto abolitionist country; however, its death sentences are commuted to life sentences, which remains contrary to international recommendations.

The US accepted the recommendation but reported in Cycle 2 that under constitutional constraints in addition to federal and state laws and practices, the use of the death penalty for any individual under 18 years old at the time of the crime was barred.¹²⁸ It further stated that three states had abolished the death penalty, and the number of persons executed each year and the size of the population on death row had continued to decline since the country’s last report.¹²⁹

126 Kenya, ‘National Report Submitted In Accordance With Paragraph 5 of the Annex to Human Rights Council Resolution 16/21’ (2014) UN Doc A/HRC/WG.6/21/KEN/1, para 56: ‘Soon after the country’s first review in 2010, the Government in collaboration with the Kenya National Commission on Human Rights and other stakeholders begun discussions on how to raise public awareness regarding the abolition of the death penalty, among Kenyans.’.

127 Niger, ‘National Report Submitted In Accordance With Paragraph 5 of the Annex to Human Rights Council Resolution 16/21’ (2015) UN Doc A/HRC/WG.6/24/NER/1, para 30. The report mentions the accession by the country to the Second Optional Protocol on capital punishment and, in 2014, the vote in favour of the UN General Assembly calling for a global moratorium on the death penalty.

128 US, ‘National Report Submitted In Accordance With Paragraph 5 of the Annex to Human Rights Council Resolution’ (2015) UN doc 16/21A/HRC/WG.6/22/USA/1, para 49.

129 Ibid, para 51.

Among the seven states that accepted at least one recommendation on the death penalty in the second cycle, Burkina Faso, following the recommendation from Belgium, adapted its legislation to

‘prohibit the application of the death penalty to minors’.¹³⁰

In Nigeria, despite the acceptance of three recommendations to abolish it, the death penalty remains lawful in a number of states.¹³¹ At the same time, the legal profession in Nigeria indicates that

courts are reluctant to pronounce such sentences. However, they have also indicated that children are being sentenced to life imprisonment without parole, despite the acceptance by Nigeria of two recommendations calling for life sentences not to be imposed for crimes committed by minors.¹³² The Central African Republic has reported that the death penalty has been kept in its revised Criminal Code.¹³³

Saudi Arabia and Yemen have both accepted some of the recommendations about abolition made during their first and second cycles, but have not taken any action. Yemen reported that Yemeni national legislation does not allow the death penalty against children.¹³⁴ Saudi Arabia and the UAE have also mentioned that the death penalty does not apply to minors. These statements are seemingly in contradiction with the current practice and/or legal system in these countries.¹³⁵

Out of the 35 recommendations received, Iran accepted only the recommendation made by Kazakhstan during the first cycle to ‘consider the abolition of juvenile execution’. Iran responded that the death penalty is carried out subject to its reservation to the UN CRC.¹³⁶ According to this reservation, ‘The Government of the Islamic Republic of Iran reserves the right not to apply any provisions or articles of the Convention that are incompatible with Islamic Laws and the international legislation in effect.’¹³⁷

The other states noted all the recommendations on the death penalty against children.¹³⁸ Among them, Bangladesh had already adopted the 2013 Children’s Act explicitly prohibiting the death penalty and life imprisonment for children.¹³⁹ Bangladesh therefore noted the recommendation at its second UPR in 2013. It was observed, however, that the laws are unclear in the country.¹⁴⁰

130 Burkina Faso,‘Rapport a mi-parcours de la mise en œuvre des recommandations de l’examen periodique universel (epu) et des organes de traites’ (December 2015), para 6: Law No 015-2014/AN of 13 May 2014 relating to the protection of children in conflict with the law or in danger (portant protection de l’enfant en conflit avec la loi ou en danger) prohibits the death penalty for children.

131 The Committee, ‘Concluding Observations on the State Party’s Third/Fourth Report’ (2010) UN Doc CRC/C/NGA/CO/3-4, para 32.

132 Slovakia and Poland to Nigeria.

133 Central African Republic, ‘National Report Submitted In Accordance With Paragraph 5 of the Annex to Human Rights Council Resolution 16/21’ (2013) UN Doc A/HRC/WG.6/17/CAF/1, para 48.

134 Yemen, ‘National Report Submitted In Accordance With Paragraph 5 of the Annex to Human Rights Council Resolution 16/21’ (2013) UN Doc A/HRC/WG.6/18/YEM/1, para 100: ‘With regard to protection of children from the risk of the death penalty, there is no article in Yemeni law that authorizes the imposition of a death sentence on juveniles. This is in accordance with article 36 of the Juvenile Welfare Act.’

135 See n 123 above, 27–28. See also information available on CRIN website: www.crin.org/en/home/campaigns/inhuman-sentencing/problem/

death-penalty accessed 20 April 2018.

136 A/HRC/14/12/add.1, para 7.

137 See https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en#EndDec accessed 20 April 2018.

138 Bangladesh, Brunei, DPRK, Malaysia, Maldives Somalia, St Lucia, Tonga and the UAE.

139 CRIN, Inhuman Sentencing of Children in Bangladesh (CRIN 2015).

140 Ibid.

Overall, the UPR has allowed the international community to keep the momentum and pressure on states retaining the death penalty by repeating a continued and constant call for the abolishment of the imposition of the death penalty for crimes committed by persons under the age of 18 years old.

This also results in consolidating the broad consensus in the international community around this absolute standard of international law.

lifeimprisonmentandotherinhumansentenCing

As to other forms of inhuman sentencing, only three states (Argentina, Niger and Nigeria) have accepted recommendations to prohibit life imprisonment for children, with no implementation so far.

Three states out of 12 accepted recommendations to prohibit corporal punishment (Mauritania, Philippines and Tonga).

With respect to life imprisonment, abolitionist states commuting death sentences into life imprisonment remain a key issue, as is the case in Niger, for example.

3.4 Conclusions and ways forward

Despite a quasi-universal ratification of the UN CRC, a majority of states still need to implement the main and leading principles underlying the administration of juvenile justice. This chapter illustrates the potential of the UPR in upholding children’s rights within juvenile justice through the reaffirmation of the main human rights standards applicable, as well as the successful impact of the UPR on effective legislative changes.

First, the UPR has given way to a ripple effect through which key issues gained political traction and eventually legal force by their repetition by a number of states.

The UPR recommendation to establish or improve a juvenile justice system has been addressed to 115 states. The human rights principles governing detention have been addressed to 118 states. Furthermore, the UPR has been the place to send a strong signal for the abolition of the death penalty for crimes committed by persons under 18 years old. Retentionist states have been systematically addressed and Iran received up to 35 recommendations. As previously stated by the IBAHRI, ‘while some of the commitments are stronger than others and the full impact of these commitments to review has yet to be seen, the UPR has definitely engaged in the universal debate

The UPR recommendation to establish or improve a juvenile justice system has been addressed to 115 states. The human rights principles governing detention have been addressed to 118 states. Furthermore, the UPR has been the place to send a strong signal for the abolition of the death penalty for crimes committed by persons under 18 years old. Retentionist states have been systematically addressed and Iran received up to 35 recommendations. As previously stated by the IBAHRI, ‘while some of the commitments are stronger than others and the full impact of these commitments to review has yet to be seen, the UPR has definitely engaged in the universal debate

在文檔中 The Role of the Universal Periodic Review in Advancing Children’s Rights in Juvenile Justice (頁 50-59)