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Human Rights Committee continued discusses General Comment on the right to life

Human Rights Committee

16 March 2017

The Human Rights Committee continued its discussion on General Comment No. 36 on Article 6 on the right to life of the International Covenant on Civil and Political Rights. It adopted paragraph 44 and 45, in a first reading, and decided to revisit a re-drafted version of paragraphs 42, 43, 46, 47 and 48 at a future meeting.  Experts were working from the draft entitled CCPR/C/GC/R.36/Rev.2
 
Paragraph 42 stated that “like any other deprivation of life, application of the death penalty for the most serious crimes must be done in a manner consistent with all other provisions of the Covenant. This includes conformity with all aspects of Article 7 of the Covenant governing the manner of execution.”  The paragraph went on to enumerate the execution methods which were contrary to Articles 6 and 7 of the Covenant.  In the ensuing discussion, one Expert was against providing a list enumerating the types or modalities of death penalty executions that were acceptable under the Covenant.  That would troublesome, namely because it would bring the Committee into an uncomfortable position.  Other Experts agreed.  Another Expert proposed the formulation “must never be” and enumerating a list of executions that would be contrary to the Covenant.  The Expert was of the opinion that it was for the Committee to state that it was against the Article 7 of the Covenant to execute people, and to state which forms of execution were absolutely unacceptable.  The Rapporteur agreed to revise and resubmit the draft paragraph after taking into account the issues debated, namely on enumeration, reference to Article 6 in addition to Article 7, and timely notification about the date. 
 
Paragraph 43 read that “violation of the fair trial guarantees provided for in Article 14 of the Covenant in proceedings resulting in the imposition of the death penalty also violated ipso facto Article 6 of the Covenant.”  It then went on to enumerate the unfair trial proceedings.  An Expert was of the opinion that the French version of the first and second sentences were ambiguous.  He proposed deleting the first sentence and clarifying the second sentence, which would state: “The non-compliance with regulatory procedures provided for in Article 14 of the Covenant rendered the enforcement of the death penalty also contrary ipso facto  to Article 6 of the Covenant.”  Another Expert was not in agreement with the “excessive delays” provision because sometimes those were justifiable and, indeed, needed.  Another Expert was hesitant in proposing a speedy trial when the death sentence was in question. One Expert stated that there should be reference to all types of religious decrees, rather than just the “fatwa.”  An Expert suggested that there should be reference to the lack of interpretation in a language understandable by the accused. Another Expert stated that the reference to “failure to respect the presumption of innocence manifesting itself in the accused being placed in a cage or handcuffed during the trial” did not make sense, as presumption of innocence could be manifested, whilst a person who was deemed dangerous could be handcuffed. The Rapporteur agreed to revise and resubmit the draft paragraph after taking into account the issues debated.
 
Paragraph 44 referred to other serious procedural flaws, not covered by Article 14 of the Covenant, which could also render the imposition of the death penalty contrary to Article 6.  Further, it stipulated, “for example, a failure to promptly inform detained foreign nationals charged with a capital crime of their right to consular notification pursuant to the Vienna Convention on Consular Relations.”  After a short discussion, Experts adopted the paragraph in the first reading.
 
Paragraph 45 stated that “the application of the death penalty to convicts whose guilt ha[d] not been proven beyond reasonable doubt also constitute[d] an arbitrary deprivation of life. States parties must therefore take all feasible precautions in order to avoid wrongful convictions in death penalty cases, including re-examination of past convictions on the basis of new evidence including new DNA evidence, and consideration of the implications on conviction in capital offences of new studies suggesting the prevalence of false confessions and the unreliability of eyewitness testimony.”  After a short discussion regarding the issue of DNA, the paragraph was adopted as amended in the first reading.
 
Paragraph 46 stated that “the application of the death penalty must also meet the non-discrimination requirements of article 2(1) and 26 of the Covenant.  Data about the disproportionate representation on death row of members of religious or ethnic minorities or foreign nationals may suggest that the application of the death penalty has an unequal effect on members of such groups and it may be, as a result, contrary to article 6, paragraphs 1 and 2.”  Experts were not comfortable with the second sentence, as it spoke of “data” and “may suggest.”  An Expert proposed a revised version of the second sentence.  The Rapporteur explained the intention of the wording, and the aspect of data, and proposed to revise the paragraph.  The Rapporteur agreed to revise and resubmit the draft paragraph after taking into account the issues debated.
 
Paragraph 47 referred to military courts, stating that it was unlikely that military courts would be regarded as sufficiently independent and impartial when trying the most serious capital crimes.  It explained that offences carrying the death penalty had to be tried before civilian courts. Some Experts did not fully agree with that paragraph.  They were of the opinion that the wording regarding the independence and the impartiality of military courts was problematic.  Others raised the point that the issue of civilians tried in military courts had to be raised. The Rapporteur explained why he had gone in that direction.  After an extensive debate, the Rapporteur agreed to revise and resubmit the draft paragraph after taking into account the issues debated.
 
Paragraph 48 stated that any penalty of death could only be carried out pursuant to a final judgment, after all judicial appeal procedures had been exhausted, and after all other petitions to available non-judicial avenues had been attempted, including supervisory review by prosecutors, and requests for a private pardon (Diyyai) from family members of crime victims.  Some Experts did not agree with the mention of Diyyai.  Others found the language of the last phrase, regarding “interim measures”, problematic.  The Rapporteur proposed to amend “exhausted” with “opportunity to resort to”; “should” with “must”; and to refer to “private or public pardon” without any reference to Diyyai.  The Rapporteur agreed to revise and resubmit the draft paragraph after taking into account the issues debated.
 
 
The Human Rights Committee will next meet in public on Wednesday, 29 March, at 10:00 a.m. to discuss its methods of work and announce the bureau decisions.
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