1. Introduction
1. On 23 June 2008, the Committee on Legal Affairs and
Human Rights was seized for report on “The death penalty in Council
of Europe member and observer countries – an unacceptable violation
of human rights”.
On
29 September 2008, the committee was seized for report on the related
topic of “Compliance with the International Court of Justice decision
in the Avena case”.
At
its meeting on 10 November 2008, the committee appointed me as rapporteur
for both topics. On 29 January 2009, the committee decided to treat
the two subjects jointly in the framework of the present report.
For the sake of brevity, the title of the report does not make express
reference to the Avena
case
(and, in effect, the latter subject should be considered as an integral part
of the report).
2. From 24 to 26 February 2010, I attended, together with an
ad hoc sub-committee constituted for this purpose,
the 4th World
Congress for the Abolition of the Death Penalty in Geneva, delivering
a keynote speech
in
the plenary and holding information meetings with parliamentarians
and experts, in particular from the United States of America, Japan
and Belarus. I met Ambassador Rafael Valle Garagorri, who had recently been
appointed by the Spanish Prime Minister to lead a new diplomatic
initiative to promote abolition. The International Commission against
the Death Penalty is an initiative of the Spanish Government. The
objective of the commission is to promote the abolition of the death
penalty worldwide. It consists of a chairperson, former UNESCO Director-General
Federico Mayor Zaragoza, and a maximum of 10 commissioners, personalities
of international standing, high moral authority and with recognised
expertise in human rights.
3. At the meeting of the Committee on Legal Affairs and Human
Rights on 26 April 2010, I was authorised to write a letter to the
United States Secretary of State concerning the implementation of
the Avena judgment of the International Court of Justice (ICJ),
jointly with the committee’s Chairperson, Mr Christos Pourgourides (see
appendix).
4. Throughout my mandate, I have intervened as rapporteur on
the abolition of the death penalty in observer states in order to
speak up against threatened executions in the Council of Europe
observer states and in Belarus, and against executions anywhere
in the world threatening Europeans.
5. The Parliamentary Assembly has remained dedicated to the abolitionist
cause, repeatedly inviting Council of Europe member states to sign
and ratify – in addition to Protocol No. 6 which foresees the abolition of
the death penalty in peacetime
–
Protocol No. 13
to
the European Convention on Human Rights which binds signatories
to the abolition of the death penalty in all circumstances. It has
continually lobbied the Council of Europe observer states, in particular
the United States and Japan, to outlaw the death penalty.
The Assembly
has also made any reactivation of the special guest status for the
Parliament of Belarus conditional upon the prior introduction of
a moratorium on executions.
6. The Council of Europe has increasingly based its arguments
against capital punishment on the European Convention on Human Rights
(ECHR), which lays down the right to life and the prohibition of
cruel, inhuman, and degrading treatment.
As we will see,
the
European Court of Human Rights has come close to finding that the
explicit recognition of the death penalty in Article 2 of the ECHR
is now obsolete. Pointing to the state’s positive obligation to
protect life, and to the inhuman and physically and psychologically
torturous conditions on death row and the equally inhuman and degrading
methods of execution in use in retentionist states, the Council
of Europe has made some headway in the last decade towards achieving
abolition in Europe and promoting it worldwide, and in particular
in its observer states and those applying for membership.
However,
much work remains to be done.
In
particular, the United States of America, Japan, and Belarus remain
salient examples of states which continue to impose capital punishment.
7. This report will provide an overview of developments in these
states since the Assembly last took stock of the situation regarding
the death penalty, with a focus on the Council’s observer states
– the United States of America and Japan. It will also briefly recall
why retentionist states stand to benefit from abolition. But to
start with, I should like to review the state of affairs in Europe.
2. Developments
in Europe: growing recognition of the death penalty as a violation
of human rights
2.1. The case law of
the European Court of Human Rights
8. The case law of the European Court of Human Rights
has evolved in such a way that one can speak of a growing consensus
in Europe that the death penalty is a violation of human rights.
9. In its 1989 judgment in
Soering
v. the United Kingdom the Court still found that it was
not a violation of Article 2 (right to life) to extradite the applicant,
accused of murder, to a country (the United States of America) where
he faced the possibility of execution, due to the explicit reference
to the death penalty as an exception from the right to life in Article
2, paragraph 1, second sentence. But the Court found that the conditions
on death row in the United States rose to the level of cruel, inhuman,
and degrading treatment:
“[H]aving
regard to the very long period of time spent on death row in such
extreme conditions, with the ever present and mounting anguish of
awaiting execution of the death penalty, and to the personal circumstances
of the applicant, especially his age and mental state at the time
of the offence, the applicant’s extradition to the United States
would expose him to a real risk of treatment going beyond the threshold
set by Article 3.”
10. Sixteen years later, in
Öcalan
v. Turkey, the Court seemed poised to address the issue
of the death penalty violating Article 2, despite the explicit reference
in this article to the death penalty, given the evolving consensus
against capital punishment in Europe. The Chamber judgment referred
to the Soering case, considering that perhaps the time had come
to recognise that state practice had changed with regard to the death
penalty to the point of rendering the reference in Article 2 obsolete.
But upon referral, the Court’s Grand Chamber skirted the issue.
Pointing to the “large number of States which had yet to sign or
ratify Protocol No. 13 concerning the abolition of the death penalty
in all circumstances”, the Court could not yet find an “established
practice of the Contracting States to regard the very implementation
of the death penalty as inhuman and degrading treatment contrary
to Article 3, since no derogation might be made from that provision, even
in times of war”. The Grand Chamber found that it was “not necessary
to reach any firm conclusion on this point since it would be contrary
to the Convention, even if Article 2 were to be construed as still
permitting the death penalty, to implement a death sentence following
an unfair trial”.
Thus, given
that Mr Öcalan, according to the Court, “was not tried by an independent
and impartial tribunal (given the presence of a military judge on
the bench of the State Security Court), that the judges were influenced
by hostile media reports and that his lawyers were not given sufficient
access to the court file to enable them to prepare his defence properly”,
the Court found a violation based on punishment following an unfair
trial rather than because the death penalty inherently violated
Article 2.
11. In 2010, the Court took another step forward when it addressed
the issue of the death penalty and Article 2 in
Al-Saadoon and Mufdhi v. the United Kingdom.
Charting the progress of treaty ratification and case law with regard
to the death penalty since Soering, the Court found that
“the right under Article 1 of Protocol
No. 13 not to be subjected to the death penalty, which admits of
no derogation and applies in all circumstances, ranks along with
the rights in Articles 2 and 3 as a fundamental right, enshrining
one of the basic values of the democratic societies making up the
Council of Europe. As such, its provisions must be strictly construed.
...
[The fact that a]ll but two of the Member States have
now signed Protocol No. 13 and all but three of the States which
have signed have ratified it . . . [plus] consistent State practice
in observing the moratorium on capital punishment, are strongly
indicative that Article 2 has been amended so as to prohibit the
death penalty in all circumstances”.
12. Thus, for the first time the Court based itself on Article
2 of the ECHR, notwithstanding its wording, to justify the duty
not to expel or extradite a person who runs a serious risk of being
subjected to the death penalty by the receiving country. The Court
established that the European consensus against the death penalty
had reached a point of maturity sufficient to override the explicit
“death penalty exception” in Article 2 of the ECHR – right to life.
2.2. Developments in
the Russian Federation
13. As regards the Russian Federation, the ratification
of Protocol No. 6 and thus the abolition of the death penalty in
law – in line with the specific commitment made by Russia before
accession to the Council of Europe – is still outstanding. But the
State Duma extended the moratorium on the death penalty in November
2006 until 2010, and at the end of 2009, the Russian Constitutional
Court further extended it “until the ratification of Protocol No.
6 to the European Convention of Human Rights”, thus effectively
banning executions during peacetime.
2.3. Belarus: the “black
hole” in a generally abolitionist Europe
14. The situation in Belarus is best described by the
testimony of Oleg Alkaev, Director of remand prison (SIZO) No. 1
in Minsk from December 1996 to May 2001, speaking to Amnesty International
in January 2009:
“The prisoner is blindfolded and
his hands tied behind his back, and he is taken into the next room.
He is told he will be held so that he doesn’t sit in the wrong place.
He is forced to his knees, it only takes a second, and he is shot.
I don’t remember any cases where the prisoner fought or struggled.
Their will is broken. They are on the edge of madness. They know
they are dying but they don’t know how much time is left, it could
be five minutes or fifteen, but they think they still have time
and they are pleased about that.”
15. I should like to recall that Oleg Alkaev is also a key witness
as regards the alleged utilisation of the death penalty execution
pistol in a series of extrajudicial executions which were the subject
of an important report by Christos Pourgourides on high-profile
disappearances in Belarus.
16. Belarus aspires for membership of the Council of Europe. The
country’s retention of the death penalty in violation of both the
right to life and the prohibition on cruel, inhuman, and degrading
treatment constitutes a major obstacle in the path of lifting the
suspension of special guest status and eventual accession.
17. In February 2008, the then Secretary General of the Council
of Europe, Terry Davis, condemned the executions of Syarhey Marozaw,
Valery Harbaty, and Ihar Danchenka. “I am upset by an insistent
intention of the Belarusian authorities to isolate their country
from Europe”, Terry Davis noted. “By these death sentences they
seem to be proud of defying human values common for other European
countries.” In April 2008, the Assembly’s rapporteur on the situation
in Belarus urged Belarus to abolish the death penalty in an open
letter to the chairs of both houses of the Belarus Parliament, which
was published in the official media. In June 2009, the Assembly
voted in favour of inviting its Bureau to lift the suspension of
special guest status to the Belarusian Parliament on the condition
– which was amended into the resolution on my initiative – that
Belarus first declare a moratorium on the death penalty.
But shortly thereafter, two more
executions were carried out, those of Andrei Zhuk and Vasily Yuzepchuk.
Whilst
the two men’s cases were still being examined by the United Nations
Human Rights Committee, Belarus carried out their executions “in
total secrecy”.
In
Resolution 1727 (2010)
the Assembly consequently decided to suspend high-level contacts
with the Belarusian authorities.
18. At the 4th World Congress for the Abolition of the Death Penalty
in Geneva in February 2010, I met with senior Belarusian officials,
including Mikalai Samaseika, chair of the Belarusian Parliament’s
recently established working group on the death penalty.
As
the Assembly’s President, Mevlüt Çavuşoğlu, rightly said last February,
the very establishment of the working group is a step in the right
direction, and the Assembly is ready to assist the working group
in launching an informed public debate aimed at creating the conditions
for abolition.
I
should like to recall in this context that the Belarusian Supreme
Court had ruled already in March 2004 that the death penalty, under
the Belarusian Constitution, is merely a temporary measure and that
a moratorium on executions could be declared at any time by the
President or by the parliament.
It
is high time for this step to be finally taken. The time for contradictory
“signals”, for blowing hot and cold air is definitely over.
2.4. Abolition in all
circumstances: Protocol No.13
19. In addition to the situation in the Russian Federation
and in Belarus described above, some other issues still need to
be addressed in Europe. Latvia has kept the death penalty on its
books for certain crimes under exceptional circumstances.
The
Russian Federation and Azerbaijan have not signed, and Armenia,
Latvia, and Poland have signed but not yet ratified Protocol No.
13 on the abolition of the death penalty in all circumstances.
Thus,
there is still room for improvement regarding European-wide abolition
of the death penalty in all circumstances.
20. As far as worldwide abolition is concerned, the World Coalition
against the Death Penalty
initiated
in 2009 a campaign in support of the ratification of the Second
Optional Protocol to the International Covenant on Civil and Political
Rights, which is the only international treaty of worldwide scope
to prohibit executions and to provide for the total abolition of
the death penalty. The only Council of Europe member states among
the target countries are Armenia, Latvia and Poland, which have
abolished the death penalty but have not ratified the Second Optional
Protocol to the Covenant.
3. Developments in
the United States
3.1. Slow progress towards
abolition
21. Since 2006, when the Assembly last adopted a recommendation
with regard to the abolition of the death penalty in member and
observer states,
there
has been some progress in the United States, albeit slow. In the
last three years, three states have outlawed capital punishment,
the
recent financial crisis has made factions of the American public
and state leadership more amenable to economic arguments in favour
of abolition,
and
the Supreme Court has demonstrated a willingness to re-open the
question of the constitutionality of executions.
22. Numbers underpin the abolitionist trend in American society.
Although the rate of executions has risen precipitously since the
Supreme Court reinstated the death penalty in 1976,
the number has levelled off in recent
years, hovering around 45 a year. While the figures charting the
number of persons put to death on an annual basis are hardly encouraging
(42 in 2007,
37
in 2008
and
52 in 2009
), looking to the number of death
sentences handed down in the last three years is more indicative
of recent trends. Death sentences have been on a steady downward
path: the total of 106 death sentences estimated by the US Death
Penalty Information Center as having been passed across the United
States during 2009 would represent the seventh straight year of
decline and the lowest annual total since executions resumed in
1977.
Furthermore, the last three years
have seen the passing of legislation abolishing the death penalty
in New York, New Jersey, and New Mexico, bringing the number of
abolitionist states up to 15, plus the District of Columbia as a
16th (non-state) abolitionist jurisdiction. While the
de jure abolition of the death penalty
in these states may be seen as a mere formality, since the three
jurisdictions had to varying degrees (New York and New Jersey strictly upholding
and New Mexico loosely observing) a moratorium since 1976,
the actual
repeal of capital punishment in these states made headlines throughout
the United States and opened up room for debate regarding the morality,
efficacy and affordability of capital punishment.
23. This issue of the cost of the death penalty system has allowed
the movement to make real headway in light of depressed state economies
and dwindling funds for law enforcement and social programmes. As
in New Mexico, where economic considerations were instrumental in
Governor Bill Richardson’s repeal of the death penalty, many governors
and citizens in historically pro-capital punishment, yet cash-strapped,
states are reconsidering their options. In Colorado, Kansas, Maryland,
Montana, New Hampshire, Nebraska, in addition to New Mexico, the
economic crisis and its impact on state funding have opened up debates
on abolishing capital punishment as a way to cut costs. In such
states, the electorate may prefer to use money currently being funnelled
into legal battles on death row appeals for social programmes that
will improve schools or stimulate development during the recession.
Particular attention has been drawn to the fact that money spent
to keep inmates on death row could be put to better use in Maryland,
where studies estimated that the cost of one execution was an astronomical
US$37 million.
Surprisingly,
in other states such as Texas and California – where the highest
number of inmates are executed annually and where the highest number remain
on death row, respectively
–
the economic argument in favour of abolition has gained little ground.
California stands to gain the most, financially
speaking, from repeal. The annual cost of the death penalty system
in California is put at US$137 million. The elimination of the death
penalty and its replacement by lifetime incarceration would save
nearly 92% or US$125.5 million per annum
. These
funds could be invested in additional police resources to boost
the dismal clearance rate for violent crimes in California, which
stands at well below 50%.
24. The United States Supreme Court may also be showing chinks
in its retentionist armour. After the court’s temporary invalidation
of the death penalty in
Furman v. Georgia in
1972, it was unwilling to revisit the issue of the constitutionality
of the death penalty until 2007. Then, in the three weeks following
the decision in
Baze v. Rees to
consider an Eighth Amendment (“cruel and unusual punishment”) challenge
to execution by lethal injection,
the court stepped in to block three
more executions on Eighth Amendment grounds.
Although the court eventually
held in Baze that lethal injections did not violate the Eighth Amendment,
it is encouraging to see that the court has exhibited a certain
trend over the last decade towards being more critical of the death penalty
at least in some cases. The court has outlawed, for example, the
execution of a mentally retarded inmate in 2002 in
Atkins v. Virginia and
the application of the death penalty to juvenile offenders in 2005
in
Roper v. Simmons,
and
its consideration of the legality of lethal injections brought about
a temporary moratorium on executions across the nation.
25. An additional portent of progress toward abolition comes from
another powerful legal body, the American Law Institute (ALI). Charged
with the task of creating restatements and model codes of law, the
ALI is able to craft its own version of legislation. The ALI’s restatements
and codes are cited as persuasive authorities in practically every
jurisdiction and area of law in the United States, and rather than
simply “restating” existing judge-made law, these promulgations
are forward-looking and -thinking in nature. This body voted in
October 2009 to withdraw Section 210.6 of its Model Penal Code,
recommending that the Code no longer include the death penalty,
“in light of the current intractable institutional and structural
obstacles to ensuring a minimally adequate system for administering
capital punishment”.
26. The Council of the ALI, in its report to its members, stated
that “[u]nless we are confident we can recommend procedures that
would meet the most important of the concerns, the Institute should
not play a further role in legitimating capital punishment, no matter
how unintentionally, by retaining the section in the Model Penal
Code”.
According
to the Death Penalty Information Center, “[t]his move essentially
withdraws ALI from any attempt to fashion an acceptable death penalty
because the system has proven to be unworkable”.
27. On the public opinion front, however, recent developments
appear less hopeful. An October 2009 Gallup poll reveals that, on
the federal level, 65% of the population still support the death
penalty for a person convicted of murder.
This
figure has shown no signs of decline over the last decade, hovering
between 64% and 70%. In fact, 80% of Americans believe that the
death penalty is not imposed frequently enough or is imposed at
the right frequency, despite the fact that most Americans believe
that at least one innocent person has been executed in the United
States in the last five years.
Although
American legislators and politicians may point to strong backing
for capital punishment as an obstacle to abolition, it is important
to note that the death penalty enjoyed popular support in all current
abolitionist states at the time of abolition.
3.2. Persisting failure
to implement the Avena (Mexico v. United States of America) judgment
of the International Court of Justice
3.2.1. United States treaty
obligations
28. Ratified by over 170 countries, the Vienna Convention
on Consular Relations (1963) regulates the establishment and functions
of consulates worldwide. Article 36 of the Vienna Convention governs
consular communication and contact with foreign nationals. Whenever
foreigners are detained, arrested or imprisoned, the authorities
must inform them without delay of their right to communicate with
the consulate and to have the consulate notified of their detention.
At the request of the foreign national, the consulate must then
be notified without delay. Article 36 also confers on consulates
the right to communicate with, visit and offer assistance to their
detained nationals, including the right to arrange for their legal
representation. The article further requires that local laws and
regulations must enable full effect to be given to the rights accorded
to detained foreigners and their consular representatives. Timely
access to consular assistance is crucially important whenever individuals
face prosecution under a foreign and often unfamiliar legal system.
29. Article 36 rights and obligations are reciprocal in nature.
As Secretary of State Madeleine Albright stated in 1998,
the ability of American consulates to
provide such assistance is heavily dependent on the extent to which
foreign governments honour their consular notification obligations
to the United States. At the same time, the United States must be
prepared to accord other countries the same scrupulous observance
of consular notification requirements that they expect them to accord
the United States and its citizens abroad.
30. The United States ratified the Vienna Convention without reservations
in 1969, but compliance with Article 36 obligations has long been
deficient – even in cases where foreign nationals would face the
death penalty if convicted.
31. In 1969, the United States also unconditionally ratified the
Optional Protocol to the Vienna Convention concerning the Compulsory
Settlement of Disputes, whereby disagreements over the interpretation
or application of Article 36 fall under the compulsory jurisdiction
of the International Court of Justice. Under Article 59 of the ICJ
Statute, its decisions in such cases are binding on the parties
to the dispute; under Article 94 (1) of the United Nations Charter,
each member nation undertakes to comply with any ICJ decision to
which it is a party. The United States was in fact the first country
to successfully bring a case under the Optional Protocol to the
Vienna Convention, in response to the seizure of American diplomatic
and consular personnel in Iran in 1979.
3.2.2. The Avena case
before the International Court of Justice
32. In January 2003, Mexico brought a case before the
ICJ on behalf of a group of Mexican nationals who had been sentenced
to death without being advised of their consular rights. Mexico
asked the court to consider whether these Mexican nationals were
entitled to a legal remedy for the violation of Article 36 of the
Vienna Convention on Consular Relations. The United States participated
fully in the case, which was entitled Avena and Other Mexican Nationals.
33. In those proceedings, Mexico sought to ensure that its nationals
received the protections to which they were entitled under domestic
and international law.
34. The ICJ issued its judgment on 31 March 2004. It found Article
36 violations in 51 of the 52 cases that it reviewed. The court
held that American courts must provide “review and reconsideration”
of the convictions and sentences to determine in each case if the
Article 36 violation was harmful to the defendant.
3.2.3. The United States
Supreme Court case of Medellín and the position of the Bush administration
35. In 2004, in the case of
Medellín
v. Dretke,
the United
States Supreme Court agreed to consider whether the Avena
judgment should be enforced by domestic
courts. Before the Court heard oral argument in the case, however,
the President issued a memorandum addressed to the United States
Attorney General stating:
“I have
determined, pursuant to the authority vested in me as President
by the Constitution and laws of the United States of America, that
the United States will discharge its international obligations under [Avena]
by having State courts give effect to the decision in accordance
with general principles of comity in cases filed by the 51 Mexican
nationals addressed in that decision.”
36. In a brief filed with the Supreme Court, the United States
Solicitor General explained that compliance with Avena “serves to
protect the interests of United States citizens abroad, promotes
the effective conduct of foreign relations, and underscores the
United States’ commitment in the international community to the
rule of law”.
37. The Supreme Court decided not to rule on the merits of the
case and instead found that Mr Medellín’s newly-filed state habeas
corpus petition based on Avena and the Presidential memorandum should
first be considered by the Texas courts.
38. After the Texas courts found that neither Avena nor the Presidential
Memorandum was binding federal law that would prevail over state
procedural bars regarding the filing of new habeas corpus petitions,
the Supreme Court again agreed to review Mr Medellín’s case.
39. In their briefings to the Supreme Court, all parties – including
Texas – agreed that United States compliance with Avena is a binding
international obligation; the only dispute between the parties was
over the appropriate means of securing its domestic enforcement.
40. The Supreme Court issued its decision in Medellín v. Texas on 25 March 2008.
The court held that Avena is not directly enforceable in the domestic
courts in the absence of implementing legislation and that the President
did not have the authority to implement Avena unilaterally.
41. While the majority, concurring and dissenting opinions differed
widely in their approaches to the legal questions presented, there
was unanimous agreement that compliance with Avena is an international
legal obligation of the United States and that Congress has the
authority to implement that obligation. The court was also unanimous
in recognising the importance of securing compliance with Avena.
3.2.4. Conclusion: legislation
urgently needed to secure compliance with Avena
42. Legislation is urgently needed in order to secure
compliance with the Avena judgment. This was recalled in a letter
to the Secretary of State and the Attorney General dated 15 October
2009 from a group of United States senators. Whilst the reply received
by the Department of Justice dated 1 April 2010 recognises that legislation
would be the “optimal” way to implement Avena, the Secretary of
State has yet to react to the senators’ letter. Meanwhile, Texas
appears to be moving to execute another Mexican national covered
by Avena.
43. Following a discussion on this topic in the Committee on Legal
Affairs and Human Rights on 26 April 2010, I therefore wrote a letter
(see appendix), together with the committee’s chairperson, to the
Secretary of State urging the United States Department of State
to recommend to Congress the passage of legislation to bring the
United States into compliance with Avena, in line with the recent
recognition by the Assistant Attorney General that legislation would
be an optimal way to give domestic legal effect to this judgment.
44. Being strongly attached to the rule of law, a value generally
shared by the United States, we made it clear that we are deeply
troubled that the United States has thus far failed to implement
the judgment, which was pronounced six years ago. This threatens
to set a dangerous precedent which certain governments may rely
upon, to the detriment of citizens of all our countries. To date,
no reply has been received to this letter.
4. Developments in
Japan: disappointment despite the temporary presence in government
of abolitionist ministers of justice
45. The situation in Japan is complex. Shifts in the
political and judicial system paint an ambiguous picture, while
conditions on death row show few signs of improvement, and public
support for capital punishment has actually increased, reaching
an all-time high just as the possibility of abolition appeared on
the horizon.
46. On the political front, the glimmer of hope provided by Prime
Minister Yukio Hatoyama’s appointment of abolitionist Keiko Chiba
as Minister of Justice appears to have been extinguished. Between
September 2009, when she was appointed, and June 2010, which saw
the end of the Hatoyama administration, Japan upheld a de facto
moratorium on the death penalty.
Keiko
Chiba has remained Justice Minister under the new Prime Minister
Naoto Kan, but the executions of two persons
on
28 July 2010 in the presence of the minister brought the de facto
moratorium to a brutal end. Furthermore, despite Chiba’s anti-death
penalty stance, there remain 107 people on death row in Japan.
The hopes
of abolitionists around the world that Chiba could reform the Japanese
penal system and achieve the abolition of capital punishment have
so far been disappointed, even if the minister, after the executions
which she attended, announced the creation of a working group tasked
with reviewing the issue of the death penalty and stated that a
thorough discussion on this subject was needed. If history is any
indication, it is unlikely that abolition could result from the
brief political term of one abolitionist minister of justice. Between
1989 and 1993, for example, four successive ministers refused to
authorise executions, but to no avail. Their terms were followed
by a particularly cruel period under former Minister of Justice
Kunio Hatoyama (referred to by death penalty opponents as the “grim
reaper,” for signing 13 death warrants in less than a year, thus
authorising more executions in Japan than occurred in any other
year since 1975
)
and his two successors, Okiharu Yasuoka and Eisuke Mori,
who reversed the tide against abolition
in the country.
47. In recent years, public support of the death penalty in Japan
has even been on an upward trend, reaching 85.6%, a jump of four
percentage points from 2004.
Moreover, the shroud of secrecy that has obscured
the execution process in Japan continues to obscure the truth, with
the Japanese citizenry remaining altogether uninformed about conditions
on death row and the judicial process. As has been the case for
many years, information about death row is limited by the fact that
the condemned are forbidden from speaking to anyone outside of their
immediate families and their lawyers. Even communication with other
prisoners or guards is prohibited. In addition to being subjected
to solitary confinement, death row prisoners are forced to sit still
and are watched by cameras 24 hours a day. They are not informed
of the date of their execution until the day comes, and their families
are only told afterwards.
Amnesty
International has carried out important research on the mental health
of the inmates of Japanese death rows.
48. The Japanese people remain largely uninformed about the execution
system in their own country. This lack of transparency is particularly
troublesome since in a new system – established in 2008 – lay judges
can condemn a convicted person to death. Such “citizen judge” panels
consist of six laypersons and three professional judges.
There
is some hope, however, that these new developments in the court
system will give the Japanese public some insight into the complexities
of the penal system and that “citizen judges” will demand more transparency
in order to be able to take truly informed decisions.
5. A brief reminder
of the key grounds for abolition
5.1. Irreversibility
of the death penalty
49. As fallible human beings, we cannot claim to be able
to fashion a penal system that is free of error. Given the probability
of convicting and sentencing the innocent, it is unacceptable to
impose a punishment that is permanent and irreversible. A system
that wrongfully convicts and imprisons a person can take steps,
however inadequate they may be, to atone for the error, but once
a state has executed an innocent person, there is no way to right
the wrong. The figures from the United States system prove that
such errors run rampant: 139 individuals on death row have been
found innocent and exonerated since 1973,
most
commonly on the basis of eyewitness error, negligent or even intentional
misconduct by police and prosecution officials, incompetent defence
counsels, scientific errors, snitch testimony and false confessions.
50. Further room for error exists in the practical application
of the United States Supreme Court’s judgment in Atkins v. Virginia, which held that
no mentally retarded person can be subjected to the death penalty.
Despite the Atkins holding and in contravention of the Eighth Amendment
prohibition on cruel and unusual punishment, there is evidence that
many states continue to execute individuals with mental illnesses
because there are discrepancies among states’ standards as to what
constitutes mental retardation for the purposes of “justifiable”
execution.
5.2. Arbitrary and biased
application of the death penalty
51. Numerous studies, concerning in particular the United
States, show that the death penalty is applied in a biased way depending
on the racial or social belonging of the perpetrators or victims
and their
gender.
52. United States Supreme Court Justice Harry Blackmun observed
that the death penalty experiment has failed. After two decades
of struggling to fashion a capital justice system that would be
consistent, fair and error-free, Blackmun said he would no longer
“tinker with the machinery of death”.
Arbitrary factors like the race
of the defendant and victim, the adequacy of the defendant’s legal
representation, the jurisdiction where the defendant is sentenced,
and whether the governor in that jurisdiction is up for re-election,
are most highly correlated with the imposition of the death penalty.
In particular, race is a prime determining factor in whether the
death penalty will be ordered. A report from the General Accounting
Office concluded that “in 82% of the studies [reviewed], race ...
was found to influence the likelihood of being charged with capital
murder or receiving the death penalty”
especially where black
defendants exhibit stereotypically “black” facial features.
Another
main factor, the quality of legal counsel is often wholly outside
of the defendants’ control, as almost all death row inmates cannot
afford private legal counsel and must be defended by a court-appointed attorney.
An examination of 461 capital cases by
The
Dallas Morning News found that nearly one in four condemned
inmates has been represented at trial or on appeal by court-appointed
attorneys who have been disciplined for professional misconduct
at some point in their careers.
In
Washington state, one fifth of the 84 people who have faced execution
in the past twenty years were represented by lawyers who had been, or
were subsequently, disbarred, suspended or arrested. Overall, the
state’s disbarment rate for attorneys is less than 1%.
A
democratic society dedicated to human rights cannot allow completely
arbitrary factors to determine whether a person lives or dies at
the hands of the state.
5.3. Ineffectiveness
of the death penalty
53. Death penalty supporters cite two main reasons for
the imposition of capital punishment: deterrence and retribution.
However, data shows that neither of these ends is achieved when
a state puts individuals to death.
Criminologists
overwhelmingly agree that the death penalty does not add deterrent
effects to those already achieved by lengthy imprisonment, and,
in particular, a high clearance rate.
Nor
does the state killing provide retributive justice. The prolonged
duration of the death row appeals process can reopen old wounds for
victims’ families without providing a satisfying conclusion.
An
additional death, far from avenging the death of innocent victims,
simply creates more suffering, particularly for the executed individual’s
family and loved ones. Furthermore, where the death penalty is likely
to or must
be
imposed for particular crimes, culpable individuals can be acquitted
and freed if anti-death penalty jurors are reluctant to return with
a guilty verdict in light of the chance that their guilty verdict
will be tantamount to a death sentence for the accused.
Thus, the death penalty
can lead to inappropriate levels of punishment at both extremes.
5.4. Cost
54. The cost of keeping an inmate on death row is extremely
high. In the United States, where the constitution demands a long
and complex judicial process in capital cases, the funds the state
expends on battling death row appeals could be better used for other
endeavours, and in particular for increasing deterrence by boosting
the clearance rate for serious crimes.
5.5. International obligations
and opinion
55. While 139 countries have abolished the death penalty
in law or in fact, the United States’ and Japan’s retention of capital
punishment puts them in the company of such states as China, Saudi
Arabia, North Korea, Somalia, and Iran, which are still applying
the death penalty on a large scale.
56. Furthermore, the retention of the death penalty by the United
States and Japan conflicts in my view with their duties as Council
of Europe observer states. Under Statutory Resolution (93) 26 on
observer status, a state wishing to become a Council of Europe observer
state has to be willing to accept the principles of democracy, the
rule of law, and the enjoyment by all persons within its jurisdiction
of human rights and fundamental freedoms.
As shown above, the imposition of the
death penalty has been recognised in Europe as being contrary to
these ideals, violating Article 2 of the ECHR, the right to life,
and Article 3, the prohibition of inhuman and degrading treatment.
Whilst two states having observer status – Canada and Mexico – have abolished
the death penalty, Japan and the United States still implement it
as a mode of punishment. The Assembly has thus found Japan and the
United States in violation of their duties under Statutory Resolution (93)
26.
57. Given the developing international consensus against capital
punishment, at least among countries with a strong tradition of
respect for human rights, the imposition of the death penalty increasingly
comes into conflict with international legal obligations. For example,
in executing José Ernesto Medellín following the ruling in
Medellín v. Texas,
the
United States ignored the ruling of the International Court of Justice
in the case concerning Avena and Other Mexican Nationals (
Mexico v. the United States of America)
and
found itself in violation of the United Nations Charter and the
Vienna Convention.