11/01/2012

Indonesia’s Supreme Court, President Commute Death Sentences for Drug Offenders

Earlier this year the Supreme Court of Indonesia vacated the death sentence of a convicted narcotics producer and distributor. In its place, the court handed Hengky Gunawan, who was arrested in 2007 for running a large ecstasy production operation, a 15-year sentence. The ruling, which was quietly made in April but made public earlier this month, has sparked curiosity and controversy concerning the retentionist country’s position on the death penalty. The Supreme Court’s ruling reportedly said that the death sentence was in violation of Article 28 of the Indonesian Constitution, which provides for rights to life and to remain free from torture that are “fundamental human rights that shall not be curtailed under any circumstance;” and Article 3 of the U.N. Universal Declaration of Human Rights.

“The judges considered the ruling to be against human rights,” court spokesman Joko Sarwoko told the Jakarta Globe. However, the spokesman also reportedly stated that the ruling did not represent a shift in the court’s opinion and should not be held as a precedent for future cases concerning drug offenses. According to the Indonesian Penal Code and laws, several drug offenses are punishable by death, including drug possession; the involvement in manufacturing or trafficking; involving children in production, trafficking or use of narcotics; and the abuse or possession of psychotropic drugs “in an organized manner.”

Shortly after the court issued its decision, President Susilo Bambang Yudhoyono commuted the death sentence of convicted drug mule Deni Setia Maharwa to life in prison. The president’s decision, while drawing criticism from politicians and anti-narcotics activists, was distinguished from that of the court by Justice and Human Rights Minister Amir Syamsuddin. Needing to support his family and pay off a car loan, Deni had agreed to carry 3.5 kilograms of heroin and 3 kilograms of cocaine to London. The president reportedly took those facts into consideration before commuting his sentence. Amir told the Jakarta Globe that the president would not have granted clemency to a major producer and distributor as the court did.

According to The Jakarta Post, Amir stated at a press conference on Oct. 16 that the president has commuted the death sentences of three other inmates to life in prison since 2007. While Indonesia has not adopted the Second Optional Protocol to the ICCPR, it is possible that the Indonesian government is shifting its position concerning the death penalty in response to its efforts to prevent the executions of Indonesian migrant workers  who are currently on death row abroad. The last executions in Indonesia were carried out in 2010.

 

--Sophia Bairaktaris

09/25/2012

Guatemala Implements Death Penalty Decisions of Inter-American Court on Human Rights

Death Penalty Worldwide has recently confirmed that between 2005 and February 2012, the Supreme Court of Justice of Guatemala commuted all pending death sentences to the maximum imprisonment for the offender’s crimes. As a result, there currently are no death row inmates in Guatemala. The commutations were issued in response to a set of two rulings issued in 2005 by the Inter-American Court of Human Rights: Raxcacó Reyes v. Guatemala and Fermín Ramírez v. Guatemala. The Inter-American Court found that Guatemala’s death penalty violated the country’s international obligations in several respects: because it allowed for the mandatory death penalty, because it created new crimes that were punishable by death, and because there was no clemency process. 

Guatemala is considered an abolitionist de facto state by the United Nations, meaning that it has not carried out any executions in the past 10 years.  Guatemala has not executed anyone since 2000. Guatemala has also twice voted in favor of the United Nations General Assembly’s Resolution to institute a universal moratorium on the use of the death penalty, in 2007 and 2010 (in 2008, Guatemala abstained from voting).

The commutations by the Supreme Court were an enormously significant step forward for this Central American country.  However, in Guatemala the death penalty still exists in national legislation and therefore its courts may pronounce death sentences at any time. Currently, Guatemala has a de facto moratorium on the application of the death penalty, primarily because of the legal vacuum regarding the procedure to request a pardon.  Over the past few years, including in 2012, Congress has proposed three bills establishing a clemency procedure with a view to resuming executions. The first two bills were vetoed by the president, and the most recent one is still making its way through the legislative process.   The current President has resolved to carry out executions during his tenure, but until Guatemala adopts a clemency procedure any executions would violate Guatemala’s international obligations.

Today, 15 years after the peace accords were signed, Guatemala is plagued by widespread insecurity, violence, and crime.   In her March 2012 visit to Guatemala, Navi Pillay, the UN High Commissioner of Human Rights, recommended that Guatemala abolish the death penalty. Nevertheless, abolition is not likely to happen any time soon because during the current period of high public insecurity, certain sectors persistently advocate for its reinstatement.  

You can find Death Penalty Worldwide's full entry for Guatemala here.

-- Vanessa Arroyo Boy

Nevada’s Supreme Court Upholds ICJ Ruling on Consular Rights of Mexicans

On September 19, 2012, in the case of Gutierrez v. State, the Nevada Supreme Court became the second court in the United States (after Oklahoma’s Court of Criminal Appeals) to uphold the decision of the International Court of Justice in Avena and Other Mexican Nationals.  In the
Avena decision, the International Court of Justice (ICJ) held that the United States had failed to notify 51 Mexican nationals on death row of their consular notification and access rights pursuant to Article 36 of the Vienna Convention on Consular Relations.  To remedy these violations, the ICJ held that the United States courts must review and reconsider the convictions and sentences of the condemned Mexicans to determine whether (and how) they were prejudiced by the deprivation of their consular rights.

In 2004, the Oklahoma Court of Criminal Appeals applied the ICJ’s ruling in the case of Osbaldo
Torres, and after conducting an evidentiary hearing, concluded that he had been prejudiced by the Vienna Convention violation. By that time, the Oklahoma Governor had already commuted his death sentences to life imprisonment based in part on the ICJ’s decision.  But in the case of José Medellín, the Texas courts refused to follow Oklahoma’s example. The United States Supreme Court ultimately held that the ICJ’s Avena Judgment did not preempt state procedural rules that barred prisoners from raising Vienna Convention claims in successive habeas corpus petitions.  In a
concurring opinion, however, Justice Stevens pointed out that nothing prevented the states from voluntarily complying with the ICJ’s judgment.  Citing the Torres, case, he urged Texas to provide the required review:  “One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation.
Texas' duty in this respect is all the greater since it was Texas that—by failing to provide consular notice in accordance with the Vienna Convention—ensnared the United States in the current
controversy.”

Texas was not swayed by Justice Stevens’ plea, however, and José Medellín was executed in 2008 without receiving the review and reconsideration to which he was entitled under the Avena judgment.  The ICJ subsequently held that the United States had breached its international legal obligations by carrying out his execution.  Then, in 2011, Texas executed Humberto Leal García in violation of Avena’s mandate. 

The Nevada Supreme Court distinguished the Medellín and Leal cases, noting that Gutierrez had
presented substantial evidence of prejudice.  Gutierrez had a sixth grade education and spoke little English at the time of trial.  The court interpreter falsified his credentials and failed to correctly interpret the testimony of a number of witnesses.  In remanding the case for an evidentiary hearing, the court cited Justice Stevens’ concurrence i Medellin, noting that while “without an implementing mandate from Congress, state procedural default rules do not have to yield to Avena, they may yield, if actual prejudice can be shown.”  (emphasis in original).

The court was particularly troubled by the interpreter’s falsified credentials and flawed
interpretation.  Noting that it remained an open question as to whether consular assistance might have affected the quality of interpretation available to Perez Gutierrez, the court concluded:
“What is clear, though, is if a non-Spanish speaking U.S. citizen were detained in Mexico on serious criminal charges, the American consulate was not notified, and the interpreter who translated from English into Spanish at the trial for the Spanish-speaking judges was later convicted of having falsified his credentials, we would expect Mexico, on order of the ICJ,  to review the reliability of the proceedings and the extent to which, if at all, timely notice to the American consulate
would have regularized them.”

Nevada is the only state, apart from Oklahoma, to have complied with the ICJ’s judgment.  Nevertheless, the decision provides important ammunition to foreign nationals seeking review of their Vienna Convention claims in states other than Texas. It also serves to remind lawyers that they should continue to aggressively litigate Vienna Convention violations, particularly in the cases of Mexican nationals subject to the Avena judgment. 

-- Sandra Babcock

09/09/2012

Iraq: Mass Executions and No Transparency

The United Nations and the European Union have joined human rights groups in denouncing the recent execution of 26 people in Iraq, the latest in a wave of mass executions that have been carried out since the beginning of the year.

On August 27, 21 prisoners including three women were executed in Iraq, and five more were executed two days later. This brings the total number of executions in Iraq since the beginning of 2012 to almost 100, a worrying and significant increase compared to the 68 executions carried out during the whole of 2011.

The government of Iraq does not release the names of executed prisoners or details about their trials or offenses, but a justice ministry spokesperson announced that all of the prisoners, like most of those executed in the past few years, had been convicted of charges related to terrorism. Under Iraqi law, terrorism comprises offenses against transportation and communications infrastructure, and may cover such acts as the simple theft of electricity.

In addition to concerns about the vagueness and overbreadth of the offenses for which prisoners are executed, human rights groups have been alarmed by major problems with the fairness of criminal trials and by the prevalence of torture in Iraqi prisons and detention centres. There are reports that some of the convictions were based on coerced confessions.

Mass executions have been a growing concern this past year in Iraq. On one day in January, 34 prisoners were executed – the largest number of confirmed executions worldwide in a single day in years. Responding to the news, UN High Commissioner for Human Rights Navi Pillay said she was shocked. “Even if the most scrupulous fair trial standards were observed, this would be a terrifying number of executions to take place in a single day,” she stated.

Rights groups such as Amnesty International and Human Rights Watch have been joined by the UN and the European Union in demanding a moratorium on executions. The United Nations Assistance Mission for Iraq warns that “sources have indicated that more executions may be carried out in the coming days.” Although the Iraqi government does not publish any official data on death sentences, it is estimated that hundreds of prisoners remain on death row. That number, moreover, may be on the rise: since October 2011, Iraqi authorities have been carrying out mass arrests and unlawfully detaining hundreds of people incommunicado without trial or known charges.

 

-- Delphine Lourtau

 

09/04/2012

Death Penalty Worldwide Publishes Review of Death Row Prison Conditions Around the World

Death Penalty Worldwide has published a review of prison conditions on death row around the world.  The survey of the world’s 93 retentionist and abolitionist de facto countries reveals that dismal and inhumane conditions pervade prisons in countries that retain the death penalty, including overcrowding, understaffed prisons, insufficient medical care, unsanitary living conditions leading to infectious diseases, custodial deaths, torture, corruption and inmate-on-inmate violence. 

The most common problem is prison overcrowding: prisons are filled beyond their capacity, sometimes housing up to two or three times the maximum number of inmates, and in some instances up to 600% more than the maximum holding capacity.  The problem of understaffing has in part developed from overcrowded prisons, and has in turn led to security issues and jailbreaks. 

Another widespread problem is insufficient or wholly absent medical care due to understaffing or inadequate supplies, which has caused custodial deaths on death row. In some cases, ill death row inmates are deprived of adequate medical care—or are deprived of any care at all—simply because they are on death row and already scheduled to die.  Other custodial deaths are caused by malnutrition and infectious diseases (which are linked to the problems of inadequate medical care and overcrowding) and inmate-on-inmate violence. 

Torture is also prevalent on death rows around the world, where inmates have been subjected to rape, shackling, extreme isolation or excessive use of solitary confinement and other methods of psychological or physical torture. 

Corruption and abuse in prisons is also a problem. In some cases, prison staff demand bribes or sexual favors from death row inmates in exchange for necessities like food or water.  Abuse can also take the form of humiliating treatment.

Further custodial deaths can result from inmate-on-inmate violence, which is of particular concern in prisons where more vulnerable inmates, such as juveniles, women and mentally ill prisoners are detained together with adult male prisoners. 

Our analysis reveals that the majority of states that retain the death penalty in law or in practice fall far short of international human rights norms that protect every human being—including incarcerated prisoners—from cruel, inhuman, or degrading treatment or punishment.    

08/28/2012

Gambia Executes Nine Prisoners After 31-Year Moratorium

A spokesman for the government of Gambia has confirmed that Gambia has executed nine prisoners on death row.  In a statement earlier this month, President Yahya Jammeh had vowed to execute all death row prisoners in coming weeks.    Press reports indicate that one of the nine prisoners executed was a woman and two were Senegalese nationals.  According to Amnesty International, three of the prisoners had been sentenced to death for treason.  The BBC reports that there are 36 individuals who remain on death row. 

 Prior to this spate of executions, Gambia was considered an abolitionist de facto state by the United Nations because it had not carried out any executions in the last 10 years.  Although it had not carried out any executions since 1981,  however, Gambian courts continued to hand down death sentences, primarily for political crimes.  In 2011, a number of individuals were sentenced to death in Gambia for treason—after reportedly unfair trials—and seven out of eight individuals sentenced to death in 2010 were convicted of political crimes.  Moving forward with executions after over three decades without executions represents a step backwards in the arena of human rights, and any executions for political crimes might also violate international law.

Omar Jallow, oppositionist leader of the People’s Progressive Party in Gambia, has called on the Government to stop the executions, exhorting “all Gambians including our religious leaders and political leaders and people who lead non-governmental organizations and civil society organizations [to] put pressure on him so that such statements and such acts will not be carried ahead [so that] there would be no executions in the Gambia.”

--Sandra Babcock and Anna Jackson

08/05/2012

Japan Executes Two Prisoners on Authorization of New Justice Minister

Two executions were carried out by the Japanese government on August 3. These are the first executions to be authorized by the current Minister of Justice, Makoto Taki, who took office in June of this year. This is the second set of executions to take place in Japan this year, bringing Japan’s total number of executions in 2012 to five. Japan typically carries out executions in cases  involving murder with aggravating circumstances or murder carried out with other felonies. Consistent with that practice, one of the prisoners executed yesterday had been convicted of the rape and murder of a 19-year-old girl, while the other had been convicted of murdering two relatives. Japan did not carry out any executions in 2011.

Japan is defined as a retentionist state by the United Nations, which means that it has carried out executions in the last 10 years. Only seven executions have been carried out by the Japanese government since the Democratic Party of Japan took control in 2009, and 2011 was the first year since 1992 in which no executions took place. In Japan, there are currently over 130 inmates on death row. Japan voted against the UN General Assembly Moratorium Resolution on the use of the death penalty in 2007, 2008 and 2010.Japan and the United States of America are the only two industrialized democratic nations that continue to carry out executions. Moreover, there has not been much public, open debate around the ethics of capital punishment in Japan. A 2010 government survey showed that 85% of the Japanese public agrees with retaining capital punishment as it is practiced. This public support for capital punishment is often invoked to justify its implementation by the Government of Japan. The executive director of Amnesty International in Japan, Hideki Wakabayashi, said in a statement last year that “the concept of human rights in Japan is narrow. It is important to view human rights from a broad angle…and to change the definition and image of human rights.” Considering the high rate of public approval for the death penalty in Japan, it will take much public debate, government cooperation and advocacy by NGOs before we see significant movement away from capital punishment.

--Anna Jackson

 

08/04/2012

Malaysia Considers Exempting Drug Mules from the Mandatory Death Penalty

On July 14, following the announcement of Singapore’s plans to ease its mandatory death penalty for low-level drug couriers, Malaysia’s Attorney General declared that he was also considering introducing discretionary sentencing for drug mules.  Drug trafficking has been a crime in Malaysia since 1952, but it was not until 1983 that the death penalty became the mandatory sentence for anyone convicted of involvement with trafficking.  Under the proposed amendments to the 1952 Dangerous Drug Act, the court would retain the ability to sentence a drug courier to death, but would also be able to consider mitigating factors and hand down an alternative sentence. Attorney General Tan Sri Abdul Gani Patail also stated that if the amendment is implemented, “those on death row would be referred back to the courts, with legal representation to be resentenced.” The death penalty would still be mandatory for other drug offenses, such as involvement in the supply or distribution aspects of trafficking.

Malaysia is a retentionist state according to the UN definition, meaning that it has carried out executions in the last 10 years. The last execution in Malaysia took place in 2011, according to Amnesty International, but given the secrecy surrounding executions, little is known about the application of the death penalty.  Malaysia has consistently voted against the United Nations General Assembly’s proposal to institute a global moratorium on executions.

The mandatory death penalty for drug-related crimes is a contentious issue in Singapore and Malaysia. In 2011, the Malaysian Bar Association, Members of Parliament and six non-governmental organizations met at a public forum to commemorate World Day Against the Death Penalty. They discussed the relevance and efficacy of their laws as well as their compliance with international human rights standards, under which the mandatory death penalty is illegal. Earlier this year, the Malaysian Bar Association also unanimously passed a mandate calling for abolition of the death penalty and for life imprisonment to replace it. Under pressure from its civil society and with the influence of Singapore’s initiative to relax its strict sentencing scheme, the Malaysian government may bring its laws closer to international human rights standards. Abolishing the mandatory death penalty for certain crimes is a significant first step towards this goal.

You can read Death Penalty Worldwide’s research about the death penalty in Malaysia here.

-- Anna Jackson

 

07/31/2012

Ghana Accepts Constitution Review Commission’s Recommendation to Abolish the Death Penalty

On July 10, the Constitution Review Commission’s recommendation for abolition of the death penalty was accepted by the Ghanaian government in a White Paper which stated that the death penalty would be replaced with life imprisonment in Art. 13 of the Constitution. This is an enormously significant development for this West African country. The White Paper added: “The sanctity of life is a value so much engrained in the Ghanaian social psyche that it cannot be gambled away with judicial uncertainties.”

Ghana is defined as an abolitionist de facto state by the United Nations, meaning that it has not carried out executions in the past 10 years. The last execution took place in 1993. No Ghanaian president has signed or approved executions since then. In the last three United Nations General Assembly Moratorium votes on the use of the death penalty—held in 2007, 2008 and 2010—Ghana abstained from voting.

In January 2010, the President of Ghana, Mr. John Evans Atta Mills, established the Constitution Review Commission as a separate entity. The Commission was formed to submit recommendations—in consultation with Ghanaian citizens—regarding amendments to the constitution. For the last two years, there has been national debate about the efficacy and necessity of the death penalty in Ghana. Moreover, the National Constitutional Conference, held in 2011 in Accra, raised the issue of retention or abolition of the death penalty. At this conference, a spokesperson for Hands Off Cain and the OSCE Committee on Human Rights, Democracy and Humanitarian Issues recommended abolishing the death penalty to the Constitution Review Commission. Although the Commission’s recommendation for abolition of the death penalty has been accepted by the Government of Ghana, this amendment will likely not go into effect until after this year’s elections. It is estimated that 83,616 submissions were received from Ghanaian citizens—both at home and abroad—concerning constitutional amendments. The process that led to the government’s decision to abolish the death penalty illustrates the importance of international and national dialogue to bring about the conditions necessary for abolition.

You can find Death Penalty Worldwide’s research on capital punishment in Ghana here

-- Anna Jackson

 

07/30/2012

No exceptions: South Africa’s Constitutional Court upholds mandatory assurances against the death penalty in all cases

The standard practice among abolitionist nations is to insist on ‘satisfactory assurances’ that the death penalty will not be imposed or carried out before allowing the surrender of individuals to another country in which they face a possible death sentence or execution upon their return. So widespread is this version of the non-refoulement principle that it is now an international human rights norm: abolitionist nations are required in all circumstances to seek and obtain appropriate assurances, and failure to do so is a breach of the sending State’s binding international obligations.

Generally speaking, the norm operates smoothly and effectively; however reluctantly, retentionist nations typically do provide and abide by the necessary assurances (recent examples include the United States, Thailand and China). But what happens when the requesting State absolutely refuses to provide the necessary assurances? Does this mean that a murderer can avoid punishment simply by crossing a border, or must the failure to obtain the necessary guarantees result instead in the fugitive’s indefinite detention without trial? In these unusual cases, is there any satisfactory alternative to surrender without assurances?

Two recent cases in South Africa highlighted these troubling questions. Emmanuel Tsebe and Jerry Phale were both accused of murder in Botswana and were arrested after they fled to South Africa. Botswana sought the extradition of both men, but refused South Africa’s request to provide guarantees against the death penalty. Unable to extradite and powerless to prosecute, South African authorities then attempted to deport the men without any protection against death sentencing. However, the High Court ruled that the suspects could not be removed from South Africa “without the written assurance from the Government of Botswana that the applicant will not face the death penalty there under any circumstance.”  The South African government appealed the decision, arguing that it had discharged its constitutional obligations by seeking assurances as a condition of extradition and that a capital deportation was lawful where the detainee would otherwise avoid prosecution for murder.

On July 27, the Constitutional Court of South Africa provided a balanced and principled answer to the dilemma. In Minister of Home Affairs and Others v Tsebe and Others, the Court unanimously upheld the lower court’s ruling. The Court found no reason to distinguish this case from its 2001 decision holding that the surrender of any person facing a real risk of the death penalty would violate the  constitutional rights to life and human dignity and the right not to be subjected to cruel, inhuman and degrading punishment or treatment. There is “no exception to this principle,” the 11 judges ruled, and the difficulties that may arise “cannot override the need for us as a nation to stay on course on the path we have chosen for ourselves to respect, protect, promote and fulfil human rights, to observe our Constitution and deepen the values upon which we have chosen to create our new society.”  The Court also found a real risk that the men would face the death penalty upon their return, noting that “imposition of the death sentence on those convicted of murder in Botswana” is “mandatory where there are no extenuating circumstances.” As the summary of the judgment notes, Tsebe expands the Court's previous jurisprudence by requiring “not only that the South African Government seek assurance, but also obtain that assurance” in all cases. 

But the Court did not stop there. Addressing the “legitimate concerns” raised by the government, the majority pointed to a straightforward solution: the passage of draft legislation giving the South African courts “jurisdiction to try crimes that have been committed outside the borders of this country” in such cases would resolve the difficulty of a requesting State refusing to provide assurances. This option would satisfy the government’s necessary commitment to “sparing no effort in fighting crime” and negate the risk of the country becoming a “a safe haven for illegal foreigners and fugitives from justice,” while meeting the constitutional duty to “not be party to the killing of any human being as a punishment – no matter who they are and no matter what they are alleged to have done.” 

The full text of this historic judgment is available here in PDF format.

--- Mark Warren