04/02/2014

Death row kids

Yemen is a party to the Convention on the Rights of the Child, which expressly prohibits the execution of individuals who were under the age of 18 at the time of the offense for which they were convicted.  Article 31 of Yemen’s Evidence Code also expressly prohibits the execution of a person who at the time of the alleged crime was a minor: “If the perpetrator was between fifteen and eighteen of age he shall be sentenced to no more than half the maximum penalty prescribed by the law, and when such punishment is the death penalty he shall be sentenced instead to imprisonment for a term of not less than three years and not more than ten years.” Article 47 of the Yemeni constitution states that, “there shall be no crime nor a punishment without a reference in the law.” Furthermore, Article 48 (a) states that, “the state will ensure personal freedom, dignity and security.” And Article 48 (h) of the same constitution states that “physical or psychological torture is a crime punishable by the law.

These constitutional principles taken together mean that, in theory, there should be no Yemeni children on death row. However, as a Human Rights Watch (“HRW”) report shows,[1] Yemen is one of four countries that still executes children in disregard of both national and international law.

According to the HRW report, as of March 4, 2013 there were 23 juveniles on death row in Yemen, all of whom had been convicted and sentenced to death despite being under the age of 18 at the time of the crime, and despite serious allegations that they were systematically tortured during their interrogation.

Juvenile convictions are often obtained in Yemen because of the simple fact that many individuals have no governmental ID or birth certificate to prove their age at the time of the crime or at the time of the future execution. As such, Yemen fails twice in observing its obligations under international law. First, each state is obligated to provide children with a universal, mandatory, free and adequate registration system. Such an obligation is widely recognized under various instruments of international law. For example, the right of registration is recognized in Article 24 of the ICCPR that states, “Every child shall be registered immediately after birth.”   It had been also recognized in the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.  In its 1997 “Guidelines for Action on Children in the Criminal Justice System,” the Economic and Social Council (ECOSOC) stated that, “States should ensure the effectiveness of their birth registration programmes.  In those instances where the age of the child involved in the justice system is unknown, measures should be taken to ensure that the true age of the child is ascertained by independent and objective assessment.

The second failure has to do with the judiciary’s reluctance to protect juvenile offenders by giving them access to a reliable medical test to determine their actual age and by giving them the right to contest their age determination. A child without a provable date of birth is extremely vulnerable, since he will not have the legal and procedural rights and assurances that are linked to his juvenile status, particularly in relation to sentencing.     

The risk of sentencing children to death becomes more pronounced when the judiciary fails to ensure that the burden of proof for establishing a juvenile’s age falls on the state. Such standards were established by the Committee on the Rights of the Child in its 10th General Comment where the Committee stated: “If there is no proof of age, the child is entitled to a reliable medical or social investigation that may establish his/her age and, in the case of conflict or inconclusive evidence, the child shall have the right to the rule of the benefit of the doubt.”  In other words, in case of doubt as to a defendant’s actual age, the court must observe and extend the presumption of innocence and the doubt shall be interpreted in favor of the suspect.

However, as was documented by HRW, in many cases the Yemeni courts and the justice system in general failed to observe these well-established international standards and chose to ignore the claims and the evidence raised by juveniles, making it virtually impossible, without the existence of official documents, to convince the court of the juvenile’s age at the time of the crime. By doing so, the justice system denies children the protection of Yemen’s law forbidding the imposition of the death penalty on juvenile offenders. By denying them their right to prove their age, the court fails its obligation to protect and observe the right of minors not to be sentenced as adults, in accordance with article 31 of the Yemeni Evidence Law that clearly states that: “A person does not have a full criminal liability if he was less than eighteen at the time of the committed act, and if the age of the accused cannot be established the judge must estimate his age with help of an expert.

Finally, the HRW report shows that some of these juveniles were sentenced to death based on confessions that were extracted by torture and cruel and degrading treatment. This practice must stop immediately. Yemen’s government and its judiciary must discharge their responsibility to protect children in conflict with the law. They must investigate the allegations of widespread torture in its prisons and during police investigations. The government should also re-open all criminal cases which ended with death sentences for alleged juvenile offenders.

For more information, watch this video of Human Rights Watch’s report:

http://www.youtube.com/watch?v=qUo16UkIF0Q

 

--Tamer Massalha



[1] Human Rights Watch, “Look at Us with a Merciful Eye”, March 4, 2013. http://www.hrw.org/reports/2013/03/04/look-us-merciful-eye.  

03/10/2014

Malaysia Should Follow Singapore's Lead and Repeal the Mandatory Death Penalty for Drug Offenses

In the past year, a significant number of foreign nationals have been sentenced to death in Malaysia for drug trafficking. Malaysia’s Dangerous Drugs Act (1952) is one of the strictest drug laws in the world, carrying the mandatory death penalty for possession and distribution of drugs.

The mandatory death penalty for drug traffickers is inherently unfair in its application. Many individuals sentenced to death under Malaysia’s harsh drug laws are foreign nationals who serve as drug mules, the most vulnerable and arguably the least responsible drug trafficking offenders. Drug mules are paid by distributors to simply transport drugs across international borders. Singapore, which also imposes the mandatory death penalty for drug trafficking, decided last year to factor in the extent of involvement and to allow judges to give life sentences to drug couriers. The amendment generated a landmark ruling in November that lifted the death penalty on a drug trafficker for the first time. Unlike its neighbor, Malaysia has continued its tough approach to international drug trafficking. Numerous foreign nationals from several countries, including Sweden, Nigeria, Iran, Thailand, Mexico, Uzbekistan and Germany, are facing the gallows for their arguably minimal part in the distribution of illegal narcotics.

Foreign nationals are intrinsically more vulnerable as capital defendants. They face language and cultural barriers, lack knowledge of the Malaysian legal system, have limited access to legal counsel, and are far from their support networks. Such obstacles may cause foreign nationals on death row to fare worse than their Malaysian counterparts in an already arbitrary mandatory sentencing regime.

Recent studies in the United States have shown that there is no evidence that the death penalty is an effective deterrent to crime. This raises the important question: will Malaysia reform its flawed mandatory death penalty system? During 2014, Malaysia has seen two instances of a possible reversal of recent trends. The first was the release of two brothers on death row in January, followed by the stay of another execution in February, both rare occurrences in Malaysia. While these two developments do not give us an answer, they look to be a step in the right direction for Malaysia moving forward.  

-- Edward Jun and Jee Won Oh

02/21/2014

India’s Supreme Court Draws Upon Human Rights Standards to Commute Death Sentences

On January 21, 2014, India’s Supreme Court reaffirmed the right to life in a landmark decision that cited international human rights standards.  In Shatrughan Chauhan & Another vs Union of India & Others, the Supreme Court commuted the death sentences of 15 prisoners.  The decision strongly emphasized the human rights of death row prisoners – denouncing such practices as executing individuals with mental illness, solitary confinement, and prolonged detention on death row.

Much of the court’s decision focused on the nature of the clemency process under Indian law.  Indian law provides that death row inmates can apply for clemency by submitting “mercy petitions” to the President.  The court held that “[m]ercy jurisprudence is part of an evolving standard of decency, which is the hallmark of society.”  The court repeatedly noted that clemency is not merely a matter of grace, but is a constitutional duty of great significance that must be exercised responsibly and expeditiously.  

The Supreme Court faulted the executive for its inexcusable delay in considering the clemency petitions of 13 petitioners.  Drawing heavily on the jurisprudence of the Privy Council and the European Court on Human Rights, the court reasoned that delay in the execution of a death sentence causes psychological torture.  The court observed that “undue, inordinate, and unreasonable delay” in carrying out the death sentence constitutes torture and justifies commutation to life imprisonment. 

Equally important, the court commuted the death sentences of two prisoners based on evidence that they suffered from mental illness.  The court embraced international norms prohibiting the execution of prisoners with mental illness, citing Resolution 2000/65 of the former UN Human Rights Commission calling upon all states to refrain from executing any person who suffers from “any form of mental disorder,” as well as a 1996 report of the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, and the UN General Assembly’s 2007 resolution calling for a moratorium on the death penalty.  In the case of Maganlal Barela, the court condemned the failure of the executive branch to consider evidence of the petitioner’s mental illness as grounds for clemency. 

The court also addressed the issue of solitary confinement, finding that death row inmates may not be held in solitary confinement until their mercy petitions have been denied.  According to the court, solitary confinement constitutes “additional and separate punishment” that is unconstitutional.  Further, the court issued guidelines for the clemency process to protect the rights of death row prisoners moving forward.  The judges held that prisoners have a right to legal aid to prepare legal challenges to the clemency process and to be informed of the result of their mercy petition in writing.  In addition, prison officials must ensure that prisoners receive regular mental health evaluations and be given “appropriate medical care.”  Finally, the court determined that the government must carry out post-mortem examinations of executed prisoners to provide the courts with data on the cause of death, which will allow for consideration of whether hanging constitutes cruel and inhuman punishment.

Less than a month after this landmark decision, the Supreme Court commuted the death sentences of three individuals convicted of the 1991 assassination of former Prime Minister Rajiv Gandhi.  The Court reasoned that the unreasonable delay in considering the inmates’ mercy petitions, a delay of more than 11 years, warranted a commutation of their death sentences.  It also rebuffed the Attorney General’s argument that in order to have their sentences commuted, death row inmates had to prove actual harm occasioned by the delay.  The court reaffirmed the fundamental rights of all citizens, including death row inmates.

The decisions come at an especially important time in India, as it had recently begun carrying out executions again after what many considered to be an undeclared moratorium on the death penalty.  The decisions have also re-ignited the public debate over the death penalty in India.

 

-- Sandra Babcock and Shubra Ohri

01/14/2014

Follow Up on Prieto v. Clark Reaffirms Important Decision

Last Friday, Judge Brinkema reaffirmed her earlier ruling that it is unconstitutional to automatically put death row inmates in solitary confinement.  She rejected Virginia’s arguments that she should delay the implementation of her order on the grounds that it would be too difficult for the prisons to make the changes that she demanded.  Before her November 2013 ruling, capital offenders in Virginia were automatically placed in solitary confinement upon sentencing, without the possibility of subsequent review.  Judge Brinkema’s ruling is significant in bringing US practices one step closer to being in line with international human rights law.  Her holding is consistent with the growing international consensus that recognizes the cruel and inhuman aspects of solitary confinement.

12/02/2013

Chinese Version of the Manual "Representing Individuals Facing the Death Penalty" Published Online for Use by the World’s Lawyers

On the occasion of Cities for Life Day on November 30, the Taiwan Alliance to End the Death Penalty (TAEDP) and the World Coalition Against the Death Penalty are proud to announce the online publication of the Chinese version of Representing Individuals Facing the Death Penalty: A Best Practices Manual. This publication is intended for lawyers who defend people facing the death penalty around the world.

This guide was made possible through cooperation between Death Penalty Worldwide, a website managed by Sandra Babcock, Professor at the Center for International Human Rights, Northwestern University School of Law; the World Coalition Against the Death Penalty; and lawyers from around 15 countries including Taiwan and China. The traditional Chinese version follows the publication of the English and French editions last May. It was revised by TAEDP, lawyers Weng Guoyan, Li Ailun, Chen Youning and Professor Jin Menghua. This version is now available for download by defence lawyers working on capital cases. (A simplified Chinese version will soon follow after revisions by lawyer Teng Biao of China Against the Death Penalty.)  You can download the guide here: http://www.deathpenaltyworldwide.org/pdf/death-penalty-manual-chinese.pdf

In a statement welcoming the publication of the Chinese version, Prof Babcock said: “Taiwanese and Chinese lawyers are facing enormous difficulties when they defend people facing the death penalty. Those cases are a lot thornier than the average criminal case. I hope this manual will be useful to them and will help them advocate more efficiently for their clients’ rights to a fair trial, from the time of their arrest to their final appeal.”

TAEDP, the Legal Aid Foundation and the Human Rights Commission of the Taipei Bar Association are planning a series of workshops in the New Year to teach lawyers how to best use the guide. The three organizations are also planning to adapt the manual to publish a guide dedicated to defence lawyers in capital cases in Taiwan specifically by the end of 2014.

For more information, watch the following videos:

  1. Sandra Babcock presents Representing Individuals Facing the Death Penalty: A Best Practices Manual
    http://www.worldcoalition.org/defense-manual-lawyers-capital-cases-death-penalty-mitigating-babcock.html
  2. Weng Guoyan of the Human Rights Commission of the Taipei Bar Association explains the difficulties lawyers experience when representing defendants in capital cases in Taiwan and how useful the guide is going to be.
    http://www.worldcoalition.org/Weng-Guoyan-arguments-accused-lawyer-taiwan.html
  3. Teng Biao of China Against the Death Penalty explains the difficulties faced by lawyers in capital cases in China and the role of the guide.
    http://www.worldcoalition.org/Teng-Biao-guide-China-defence-lawyers.html

 

 

11/25/2013

Death Row and Solitary Confinement – an Unconstitutional Practice

On November 12, 2013, Judge Leonie M. Brinkema of the United States District Court for the Eastern District of Virginia held that automatic and permanent placement of death row prisoners in solitary confinement violates the U.S. Constitution in Prieto v. Clark. In the United States, a majority of prisoners on death row will serve years in solitary confinement, awaiting execution.  Although international human rights bodies have recognized that solitary confinement can constitute a form of torture; Prieto is one of a few U.S. cases that highlight the inhuman aspects of prolonged solitary confinement.

In Virginia, capital offenders are automatically placed in solitary confinement upon sentencing, without the possibility of subsequent classification review.  Death row prisoners are isolated in their cells for 23 hours a day, the lights are always on, and they are only allowed five hours of recreation a week.  The judge described these conditions as “dehumanizing.” 

In her holding, Judge Brinkema commented that while not all incidences of solitary confinement are unconstitutional, conditions that constitute “atypical and significant, hardship” without the potential for reclassification violate the Due Process Clause of the Fourteenth Amendment.  The plaintiff’s confinement, in this case, was held to be such a hardship.    Judge Brinkema noted that the prisoner’s solitary confinement furthered few, if any, penological interests.

Solitary confinement, in combination with the mental torment of a pending execution, causes severe mental suffering.  The UN Special Rapporteur on Torture recently concluded that solitary confinement can amount to torture because of the devastating and irreversible psychological effects it has on detainees.  Likewise, the Human Rights Committee concluded that prolonged solitary confinement can amount to torture or other cruel, inhuman or degrading treatment. The UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment explains that torture includes “the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses.”

Although Prieto does not cite this international authority, the court’s conclusions are consistent with the growing consensus that solitary confinement is unnecessarily cruel and inhumane.  Judge Brinkema’s holding, which explicitly recognizes the cruel and inhuman aspects of solitary confinement, represents a step in the right direction.

- Shubra Ohri

11/12/2013

Death for Dissidents, Petty Thieves, and “Scoundrels” in North Korea

Although North Korea goes to great lengths to conceal its use of capital punishment, our research reveals that the country sentences its citizens to death for an astonishing array of crimes, ranging from political offenses to petty theft.  We have just updated our research based on our review of North Korea’s amendment to its Penal Code (in the original language) and other sources that shed light on the country’s arbitrary use of the death penalty as an instrument of state power. 

 

The North Korean Criminal Code includes 22 death-eligible crimes, most of them defined simply as “especially serious” categories of criminal offenses.  But the term “especially serious” is interpreted with Orwellian irony:  executions have reportedly been carried out for offenses such as stealing six cows or half a sack of rice.  Perhaps the most farcical provision of the North Korean penal code provides that an individual convicted of an “especially serious” case of being a “scoundrel” is punishable by death.

 

Death sentences may also be imposed for political offenses such as “ideological divergence,” “opposing socialism,” and “counterrevolutionary crimes.”  In practice, the regime appears to use capital punishment not only to punish perceived dissidents, but also to rid itself of individuals who have somehow embarrassed the regime.  For instance, a former Cabinet official who was in charge of talks with South Korea was reportedly executed by firing squad for policy failure in 2010, and in 2012, Kim Chol, North Korea’s Vice Minister of the People’s Armed Forces, was reportedly executed for drinking alcohol during the mourning period for former leader Kim Jong-il.

 

Most executions reportedly take place in North Korea’s notorious political prison camps that hold prisoners who have allegedly committed political crimes, along with every member of their families for “guilt by association.”  Political or “anti-state” offenses are considered most serious, and those who are convicted of such offenses are never released from detention. People have reportedly been detained for listening to South Korean broadcasts, possessing Bibles (in spite of constitutional protection of religious freedom), and attempting to flee the country.

 

At the political prison camps, living conditions are reported to be barely habitable. In Yodok camp, for instance, detainees and prison guards report that extreme hunger causes inmates to resort to eating snakes or rats. Sanitation is poor and prisoners do not change their clothes during their incarceration and are rarely able to bathe or wash their clothing.  One toilet is reportedly shared by 200 prisoners, no blankets are available in the winter, and public executions are carried out in front of prisoners, including executions of family members. Yet North Korean representatives have told the UN Human Rights Council that public executions are carried out to punish “very brutal violent crimes” and used only “in very exceptional cases.” 

 

North Korea’s practices provide the clearest example of how the death penalty may be used for political ends.  With no respect for the rule of law, no independent judiciary, and no respect for fundamental human rights, the current regime is unlikely to reform its use of the death penalty in the near future.

 

-- Jee Won Oh and Sandra Babcock

11/04/2013

South Korea’s Ambivalent Position on the Death Penalty

Based on newly obtained information on South Korea’s criminal legislation (in the original language), Death Penalty Worldwide has significantly updated and revised its research on South Korea. Since its last execution in December 1997, South Korea’s stance on the death penalty has seemed rather ambivalent. When former President Kim Dae-jung took office in 1998, it seemed as though South Korea was beginning to inch toward abolition. Kim was a former death row inmate and an outspoken opponent of the death penalty. Yet efforts to abolish capital punishment have never moved forward – the National Assembly has failed to pass three bills aimed at abolition and the Constitutional Court has twice upheld the death penalty in the face of constitutional challenges. In fact, South Korea passed new legislation in 2010 that expanded the number of death-eligible crimes. 

South Korea’s official position in the international arena has been just as ambivalent. While repeatedly abstaining from voting on the UN General Assembly’s Moratorium on the Death Penalty Resolution, the South Korean government has expressed its willingness to consider ratifying the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty.

It appears, however, as though South Korea may be moving backwards in the midst of a global trend against the death penalty. Current President Park Geun-hye publicly expressed her support for capital punishment five months prior to taking office, and a recent survey of college students indicated that 76% of the respondents were in favor of resuming executions in response to the rise in heinous crimes. In 2012, the government delegation stated at South Korea’s Universal Periodic Review at the UN Human Rights Council that the abolition of the death penalty required careful review of “public opinion and … social realities.” In our view, an official moratorium on executions, let alone abolition of the death penalty, cannot be expected in the short term.

 

-- Jee Won Oh

10/22/2013

Moving Away from the Death Penalty in Southeast Asia

            In Bangkok this week, representatives from several Southeast Asian governments have come together to discuss the prospects for abolition in the region.  The conference, hosted by the office of the UN High Commissioner on Human Rights and the Thai Ministry of Justice, has already generated surprising new information on government plans for abolition in the region.  Long considered a stronghold of the death penalty, the reality on the ground is much more complex.

            In his opening remarks at the conference, Dr. Naras Savestanan of the Thai Ministry of Justice announced that the government will soon propose legislation to abolish the death penalty in the country.  Dr. Savestanan catalogued the problems with the application of the death penalty, including the possibility of wrongful convictions, racial and ethnic bias in its application, the lack of any deterrent value, and the pain associated with execution.  He concluded that the death penalty was a cruel and unreasonable punishment.  If Thailand abolishes the death penalty, it will become the fourth abolitionist nation in the region along with the Philippines, Cambodia, and Mongolia. 

            Myanmar’s government has prevented all executions in the country as a matter of official policy since 1988.  According to the Myanmar Attorney General’s office, the country is now considering ratification of the ICCPR, and will continue its moratorium while it decides whether to move toward abolition.  Laos ratified the Torture Convention just last year, and has had a de facto moratorium for more than 20 years.  Mr. Phoukhong Sisoulath from the Laos Foreign Ministry commented that the concept of proportionality in Laos dates back several hundred years to one of the country’s early kings, who was revered for his humane approach to the treatment of prisoners.  Laos is now examining its penal code with an eye toward reducing the number of death-eligible crimes.  Brunei has not executed any prisoners since 1957.

            One of the most interesting panel presentations during the seminar was given by Dr. Mai Sato from the Centre for Criminology at Oxford University.  Dr. Sato explained how opinion polls on the death penalty in Japan, which are frequently cited by the Japanese government to justify its retention, are skewed by the nature of the questions asked.  Official opinion polls indicate that an overwhelming majority (about 86%) of Japanese residents oppose abolition of the death penalty. Her own polling revealed that the actual number of “hard core” supporters of the death penalty is around 56% of the population.  Moreover, when those hard core supporters of the death penalty are subjected to “deliberative polling,” which solicits their views after they have discussed the application of the death penalty with experts, about half of them changed their minds.

-- Sandra Babcock  

06/14/2013

Providing Help to Capital Defense Lawyers Around the World

June 14, 2013

Today in Madrid, Death Penalty Worldwide released the first-ever international manual of best practices for capital defense lawyers.  Lawyers from Pakistan, China, Taiwan, Nigeria, Uganda, Cameroon, Guinea, Belgium, France, Portugal and the United States contributed to the manual, which draws from international human rights law as well as the practical experience of defense attorneys around the world.  It is available on DPW’s website in both English and French at http://www.deathpenaltyworldwide.org/dpw-publications.cfm and http://www.deathpenaltyworldwide.org/dpw-publications.cfm?language=fr.

Lawyers in the global south– particularly in Africa, Asia, and the Middle East—have little recourse to training materials to guide them in defending a capital case.  Defense attorneys are almost universally underfunded, and most have never attended a single training session on how to
handle the representation of a person who is facing the death penalty.  The new manual is a step-by-step guide designed to assist a legal representative through all stages of a capital case, from the moment of an individual’s arrest to their final clemency application.  Among other things, the manual provides practical guidance regarding pretrial litigation, investigation of mitigating
evidence, trial strategy, working with the media, appeals, and petitions to international human rights bodies.

At the launch of the manual, lawyers from Pakistan and China discussed the challenges they face in defending individuals facing the death penalty. Sarah Belal, the director of Justice Project Pakistan, described how she has struggled to educate lawyers in her own country about the importance of
investigation in capital cases.  “Many lawyers in Pakistan have never attended a training session in their entire professional careers.  If lawyers begin to implement the practices described in this manual, countless prisoners will be saved from execution.”

The manual has already been translated into French, and will be translated into Chinese and Arabic by the end of 2013.  The Minneapolis-based law firm of Fredrikson and Byron provided critical support in the production of the manual, along with an international team of lawyers, academics, and students associated with Northwestern University’s Center for International Human
Rights.

-Sandra Babcock