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

 

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07/18/2012

Developments on the Death Penalty in Jordan

In mid-June 2012, the World Coalition Against the Death Penalty organized its 10th annual General Assembly, hosted by Penal Reform International in Amman, Jordan. This General Assembly focused on the progress made, existing challenges and strategies towards the abolition of the death penalty in the Middle East, North Africa and abroad. There were over 130 civil society organizations in attendance, including the Jordanian media and a number of non-profit and non-governmental organizations. The topics discussed as crucial for the coming years included: “1. the adoption of the United Nations General Assembly moratorium resolution on the death penalty (set to be discussed December 2012); 2. steps towards developing and adopting an Optional Protocol to the African Charter on Human Rights on abolition of the death penalty; 3. the SAFE California Campaign and abolition of the death penalty in Connecticut.”

The General Assembly was opened by the Secretary General of the Jordanian Ministry of Justice, Judge Dr. Mustafa al-Assaf, who discussed the progress that Jordan has made toward the abolition of the death penalty, as well as the challenges that remain. Jordan is a retentionist state, meaning that the state retains capital punishment for certain crimes and has carried out executions within the last ten years (the last execution took place in March 2006).  Nevertheless, courts continue to impose death sentences as a form of punishment, as demonstrated by the 74 Jordanians currently under sentence of death (including seven Jordanians sentenced to death just this year)—all for crimes involving premeditated murder. In recent years, the Jordanian Penal Code has been amended to limit the number of crimes for which the death penalty can be applied. At present, the following crimes are punishable by death: murder, rape (of a girl under 15), some drug-related offenses, espionage, treason and terrorism.

At the latest United Nations General Assembly session in 2010, Jordan abstained from voting on a resolution calling for a moratorium on the death penalty. Jordan’s abstention, taken together with its decision not to carry out any executions for the last six years, indicates that the government may be moving toward abolition of capital punishment.

Elsewhere in the Middle East and North Africa, political change has brought renewed scrutiny of the death penalty. Thus far, however, none of the newly elected democratic governments have moved definitively to abolish the death penalty. In Jordan, the hiatus in executions provides an opportunity for reflection on whether the death penalty is a deterrent, whether its practice is consistent with international standards and whether a society moving towards a more liberated present can afford to retain this practice. 

-Anna Jackson

 

07/17/2012

Benin Signs International Treaty, Commits to Abolishing the Death Penalty

On July 5, 2012, Benin became the 75th state to accede to the Second Optional Protocol of the International Covenant for Civil and Political Rights. The 1989 human rights treaty aims at the universal abolition of the death penalty. By becoming a state party, Benin pledges to immediately cease carrying out executions and to take all necessary measures to abolish the death penalty within its jurisdiction. 

Benin has not carried out any executions in almost 25 years. The two last individuals to be executed, in 1987, had been convicted of ritual murder. Despite the long-standing de facto moratorium on executions, Benin’s attitude towards the death penalty only began shifting towards abolition in recent years. As recently as 2006, Benin’s minister for justice declared that the death penalty had to be maintained to deter foreign criminals.

The turning point came in 2009-2010, when the president tabled an abolition bill before the National Assembly. Under this bill, the death penalty would have been prohibited by Benin’s constitution. While that bill did not pass, in August 2011 the National Assembly voted overwhelmingly (55 to 5) in favor of ratifying the Second Optional Protocol, and therefore in favor of abolition.

Benin is poised to join the 104 countries that have already abolished the death penalty – more than half of the world’s states.  The number of countries that retain the death penalty has decreased steadily over the past two decades. Last year, 21 countries carried out executions. In 2012, so far, only 12 are known to have executed individuals.

Death Penalty Worldwide’s full updated entry for Benin can be found here.

-- Delphine Lourtau

 

07/10/2012

Singapore to Introduce Discretionary Sentencing for Drug Couriers

In a major shift, Singapore’s government announced this week that it intends to abolish the mandatory death penalty for certain crimes relating to drug trafficking. 

According to media reports, Deputy Prime Minister Teo Chee Hean told Parliament that a drug courier who is not involved in the supply or distribution of narcotics would not face the mandatory death penalty, so long as one of two conditions is met:  (1) he must cooperate with authorities in a "substantive" way, or (2) he must have a mental disability that "substantially impairs" his judgment of the gravity of the act.

The Singapore Law Society characterized the announcement as a “historic moment for the criminal justice system in Singapore.”  The Association of Criminal Lawyers of Singapore stated:  “Death row inmates deserve punishment, but not all deserve death. These new measures are progressive and will have (a) massive impact on the criminal justice system."

There are currently 35 individuals on Singapore’s death row, many of whom should benefit from the changes in the law.  According to the Association of Criminal Lawyers of Singapore, the government is considering applying these changes retroactively.  It is not yet clear how many of the 35 condemned prisoners would qualify for resentencing under the proposed legislation.  One of them is Cheong Chun Yin, who was sentenced to death for carrying heroin from Myanmar to Singapore.  Another is Yong Vui Kong, a Malaysian national who was only 19 years old when he was arrested for possession of 47 grams of heroin and sentenced to death.

In a separate statement, Singapore announced its intention to restrict the mandatory death penalty in homicide offenses to individuals who have an express intention to kill.  Singapore’s announcement is an important step toward compliance with international norms that restrict the death penalty to the “most serious offenses.”  Singapore has long been one of the most stalwart defenders of the death penalty in the United Nations, and its decision to restrict the application of the death penalty may have ripple effects in Southeast Asia.

Even with these changes, however, Singapore’s application of the death penalty fails to conform to international human rights norms.  The mandatory death penalty has been condemned by a number of international and domestic courts as an arbitrary and inhumane punishment, as it precludes judges from considering the facts of the offense and the individual characteristics of the offender in determining an appropriate sentence. 

-- Sandra Babcock

 

06/15/2012

Chad

Chad

Death Penalty Worldwide continues its examination of francophone countries this week with a substantial update of its entry for Chad.

Although Chad is a retentionist country according to the United Nations’ definition, very few executions have taken place in Chad in the last two decades. Since 1991, Chad has maintained a de facto moratorium with the exception of the year 2003, when the government executed nine men over a period of 4 days.  Four of the nine men had been found guilty two weeks earlier of assassinating a Sudanese politician and businessman. The Chadian government described this case, the Adouma affair, as a “heinous and particularly spectacular crime committed by felons in the middle of town”, requiring a “forceful” response in order to “regain the trust of foreign investors” by sending a strong message about its response to chronic insecurity.  The remaining five executed men had been convicted of unrelated homicides.

The executions were controversial; they also undermined national momentum toward abolition.  A few months earlier, a national law reform committee had recommended that the government abolish the death penalty. The executions also violated international law, as some of the prisoners were executed before they had exhausted their appeals.  

Since 2003, Chad’s position with regard to the death penalty has remained ambiguous. In its June 2008 report to the Human Rights Committee, the Chadian government declared that, following the “sharp criticism and censure” generated by the Adouma executions, “all death penalties [had] been commuted to life sentences,” and added that it was “preparing the population to accept the abolition of the death penalty.” Two months later, however, a Chadian court convicted former President Hissène Habré and 11 opposition leaders in absentia and sentenced them to death for crimes against Chad’s constitutional order, territorial integrity and security. Habré currently lives in Senegal, and Chad’s government continues to seek his extradition. Furthermore, Chad signed the 2008 and 2010 Note verbale de dissociation, which registered its formal opposition to the U.N. General Assembly’s resolutions on a global death penalty moratorium. Chadian courts have also continued to hand down death sentences. Most recently, in July 2011, an N’Djamena criminal court handed down a death sentence to Guidaoussou Tordinan for killing his wife and injuring his mother-in-law.

On the other hand, Chad accepted the recommendation it received during its 2009 Universal Periodic Review to ratify the Second Optional Protocol to the ICCPR, which aims at achieving the universal abolition of capital punishment.

Death Penalty Worldwide’s full entry for Chad can be found here.

 

 

 

05/30/2012

Guinea, a new abolitionist de facto state

Death Penalty Worldwide has just updated its entry for Guinea. The West African country recently joined the group of abolitionist de facto states, according to the United Nations definition (no executions in the past 10 years). Its last execution took place in 2001.

Executions in Guinea have been rare over the past few decades. The 2001 execution followed a de facto moratorium of 16 years, and the current de facto moratorium has lasted over 10 years. During both these moratoria, however, Guinea has continued to hand down death sentences – in 2005, 2006, 2008, and most recently, in 2011, when 16 persons were sentenced to death for their involvement in an ethnic confrontation during which at least 25 people were killed.

The 2011 sentences belie statements made by President Alpha Condé in July 2011, when, during a meeting with foreign diplomats, the president declared that the death penalty did not exist in Guinea. Sentencing people to death, he explained, was never acceptable – even for those who attempted to take the President’s life.

President Condé’s pronouncements on the death penalty and other human rights issues have been the object of careful observation. As the first president in decades to have been elected during largely free and fair elections, his presidency had embodied a chance to break with with a history of repressive regimes which had little regard for human rights.

Guinea’s historical attitude towards the death penalty is more ambiguous and more difficult to define than its President’s statements suggest. In September 2010, shortly before Condé’s election, the Minister of Justice told the Human Rights Council that “following high level consultations, it was decided that it was premature to include [the question of abolishing the death penalty] in the national debate, especially during this delicate transitional phase.” He went on to explain that the “solution would be to have a de facto moratorium”.

However, Guinea has also expressed its objections to a formal moratorium during its recent votes on the U.N. General Assembly’s resolution for a universal moratorium on executions. Guinea voted against the moratorium in both 2008 and 2010, and even joined the signatories of the 2010 Note Verbale of dissociation in 2010.

Death Penalty Worldwide’s full entry for Guinea can be found here.

 

-- Delphine Lourtau

 

04/24/2012

Lancement de la version française du site Death Penalty Worldwide

Le site Death Penalty Worldwide a le plaisir d’annoncer aujourd’hui le lancement de la version française de son site internet et de sa base de données de recherche. Afin d’accomplir sa mission de fournir des informations fiables et complètes sur la peine de mort à des utilisateurs du monde entier, Death Penalty Worldwide se rend plus accessible aux avocats, chercheurs et activistes provenant de pays francophones. La section française du site est inaugurée par la publication de notre recherche sur quatre pays de langue française: le Burkina Faso, le Cameroun, le Niger et la République démocratique du Congo. Grâce au soutien de l’Ambassade de France aux États-Unis et de la Coalition Mondiale Contre la Peine de Mort, nous y ajouterons dans les prochaines semaines notre recherche sur la peine de mort dans d’autres pays francophones.

 

-- Delphine Lourtau

 

Launch of the French version of Death Penalty Worldwide

Death Penalty Worldwide is excited to announce today’s launch of the French version of its website and research database. In keeping with its mandate to provide reliable and comprehensive information on the death penalty to a global audience, Death Penalty Worldwide is increasing it accessibility to lawyers, scholars and activists in francophone countries. Research on four French-speaking countries inaugurates the website’s French section: Burkina Faso, Cameroon, Niger, and the Democratic Republic of the Congo. Thanks to the support of the French Embassy in the United States and the World Coalition Against the Death Penalty, to whom DPW expresses its thanks, additional francophone country research on the death penalty will be added in the coming weeks. 

 

-- Delphine Lourtau

 

04/04/2012

Europe: an almost death penalty-free continent

Death Penalty Worldwide has just updated its research on the Russian Federation and Belarus, the only European countries that have not completely abolished the death penalty.

In Europe, capital punishment has been abolished country by country, and today it is nearly a death penalty-free area. Since 1999, there have been no executions in the Council of Europe region (which comprises 47 countries – every European country except Belarus). The abolition of the death penalty is presently a condition for membership in both the Council of Europe and the European Union.

Every Council of Europe Member State is party to the European Convention for the Protection of Human Rights and Fundamental Freedoms, which protects the right to life. The Convention, signed in 1950, originally allowed for the death penalty, but imposed safeguards on its application, such as the legality principle and the guarantee of an independent and impartial tribunal (article 2: “Right to life. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”), the prohibition of torture and inhuman or degrading treatment or punishment (article 3), and the right to a fair trial (article 6). In 1983, Protocol No. 6 was opened for signature, which provided for the abolition of the death penalty except for acts committed in time of war or of imminent threat of war. In 2002, Protocol No. 13 was opened for signature, with a view to abolishing capital punishment in all circumstances. Moreover, the jurisprudence of the European Court of Human Rights has established that a State Party to these Protocols would violate the Convention if it agreed to extradite a person to any country where there were “substantial grounds” for believing that there was a “real risk” that the person would be sentenced to death, without clear and binding assurances from that country that the person would not be so sentenced, or at least that the penalty would not be carried out (see namely Soering v. UK, Jul. 7, 1989; Kaboulov v. Ukraine, Nov. 19, 2009, §99).

Protocol No. 6 was ratified by all Member States of the Council of Europe except for Russia. Protocol No. 13 was ratified by all but 4 Member States (Armenia, Azerbaijan, Poland and Russia). Latvia ratified Protocol No. 13 most recently, in January 2012.  No Member States of the Council of Europe apply the death penalty.

The Council of Europe has been an active voice against the death penalty, which it considers inhuman, and has consistently urged the countries that retain it to consider its abolition.

The European Union also rejects the death penalty. The Charter of Fundamental Rights of the European Union states in article 2 (protecting the right to life) that no one shall be condemned to the death penalty, or executed. All 27 Member States of the EU have abolished the death penalty in law.

Russia is the only Member State of the Council of Europe that still has not ratified Protocol No. 6, despite having committed itself to doing so in 1996 as a condition of accession to the organization. At the time, however, then-President Boris Yeltsin imposed a moratorium on executions.  In 1999, the Constitutional Court ruled that the Federation had not yet implemented adequate safeguards regarding the application of the death penalty and instituted a judicial moratorium on the death penalty until jury trials were made available in all regions of the Federation. By the end of 2009, when jury trials were ready to begin operating in all regions, the Constitutional Court revisited the issue and extended the moratorium, this time based on the international commitments of the Federation. Russia hence falls under the category of abolitionist de facto countries. Yet the current moratorium’s prospects of leading the country to de jure abolition in the near future remain uncertain, as politicians have postponed abolition by citing terrorist attacks in the country and the alleged support of public opinion for capital punishment. Death Penalty Worldwide’s research also shows that the lack of fair trial safeguards and harsh prison conditions are still a challenge for the Russian justice system.

Belarus is the only retentionist country in the continent. It is also the only European country that is neither a Member of the Council of Europe nor a party to the European Convention on Human Rights. Belarus continues to apply and to execute death sentences; just last month, in March 2012, it executed two men convicted of the bomb attack at a Minsk subway in 2011. There were serious concerns about the fairness of their trials. Despite the small number of executions in the past few years in Belarus, trials lacking fundamental legal safeguards, poor prison conditions on death row, and the secrecy surrounding executions (families are notified only after the execution has been carried out and the bodies of the executed are buried in unmarked graves that are kept secret) remain serious concerns. Continuous appeals by the international community urging Belarus to adopt a moratorium on executions have been ignored. The country’s authorities adopt ambiguous positions, sometimes expressing willingness to consider the possibility of abolition, and at other times showing a lack of political will, arguing that public opinion supports the death penalty. Recent events have dashed hopes that the country will move towards abolition in the near future and that Europe will soon become a wholly death penalty-free continent.

Our updated research on the death penalty in Russia and in Belarus is available here (Russian Federation) and here (Belarus).

-- Inês Horta Pinto