Doc. 9115

7 June 2001

 

 

Abolition of the death penalty in Council of Europe observer states

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mrs Renate Wohlwend, Liechtenstein, Group of the European People's Party

Summary

A Council of Europe observer state has 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. Japan and the United States of America are the only two states which have been granted observer status by the Committee of Ministers of the Council of Europe, but retain the death penalty and carry out executions. The Assembly condemns all executions, wherever they are carried out, but the executions carried out in observer states which have committed themselves to respect human rights put both states in violation of their obligations under Statutory Resolution (93) 26 on observer status.

The Assembly should therefore require of Japan and the United States of America to institute without delay a moratorium on executions, and take the necessary steps to abolish the death penalty. Conditions on death row should immediately be improved. The Assembly and the Committee of Ministers should initiate and promote dialogue with their respective counterparts from both states in all forms. The Assembly should decide to call into question the continuing observer status of Japan and the United States of America with the organisation as a whole, should no significant progress in the implementation of the Assembly’s demands be made by 1 January 2003.

To avoid creating any more problematic situations of this type in the future, observer status with the Assembly or with the organisation as a whole should only be granted to countries which strictly respect a moratorium on executions or have already abolished the death penalty.

I.       Draft resolution

1.       The Parliamentary Assembly of the Council of Europe reaffirms its complete opposition to capital punishment. The Assembly considers that the death penalty has no legitimate place in the penal systems of modern civilised societies, and that its application constitutes torture and inhuman and degrading punishment within the meaning of Article 3 of the European Convention on Human Rights.

2.        The Assembly believes that the imposition of the death penalty has proved ineffective as a deterrent, and owing to the possible fallibility of human justice, also tragic through the execution of innocent people.

3.       The Assembly recalls that the willingness to institute an immediate moratorium on executions and to abolish the death penalty in the long-term has become, since 1994, a precondition for accession to the Council of Europe. As a result, the 43 countries which make up the Council of Europe have been a de facto death penalty-free zone since 1997.

4.        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. Canada (1996), Mexico (1999), Japan (1996) and the United States of America (1996) have been granted observer status by the Committee of Ministers of the Council of Europe. Japan and the United States of America keep the death penalty on the statute books and carry out executions.

5.        The Assembly condemns all executions, wherever they are carried out. However, the Assembly is particularly disturbed about executions carried out in observer states which have committed themselves to respect human rights. The Assembly condemns the execution of juvenile offenders, of persons suffering from mental illness or retardation, and the lack of a mandatory appeal system for death penalty cases. The Assembly is also very concerned about conditions on death row, both in Japan and in the United States of America, exacerbating the mental anguish known as “death row phenomenon”, which was expressly declared a violation of human rights by the European Court of Human Rights in 1989.

6.        The Assembly is aware of the various obstacles which have so far impeded the abolition of the death penalty in both observer states, such as a high proportion of public support. These obstacles can and must be overcome, as the European experience has shown. In the United States of America, the criminal justice system is not exclusively of federal competence. The Assembly believes, however, that both the federal and the state legislatures should follow the example of the 13 United States jurisdictions which have abolished the death penalty.

7.       When Japan and the United States of America were granted observer status with the Council of Europe, the organisation’s position on capital punishment was already clear, but had not yet been taken on board by all European states. Today, the Council of Europe does not accept countries in its midst which carry out executions. Viewing the application of the death penalty as a violation of the most fundamental human rights, such as the right to life, and the right to be protected against torture and inhuman and degrading treatment, the Assembly thus finds Japan and the United States of America in violation of its obligations under Statutory Resolution (93) 26 on observer status.

8.        The Assembly therefore requires of Japan and the United States of America to:

i. institute without delay a moratorium on executions, and take the necessary steps to abolish the death penalty.

ii. ameliorate conditions on death row immediately, with a view to alleviating “death row phenomenon” (this includes the ending of all secrecy surrounding executions, of all unnecessary limitations on rights and freedoms, and a broadening of access to post-conviction and post-appeal judicial review);

9.        The Assembly resolves to take all measures to assist Japan and the United States of America in instituting moratoria on executions and abolishing the death penalty. To this end, the Assembly will promote dialogue with parliamentarians from Japan and the United States of America (both state and federal) in all forms, in order to support legislators in their endeavours to institute moratoria on executions and abolish the death penalty, and in order to engage the opponents of abolition in informed debate.

10.        The Assembly deeply deplores the fundamental difference in values regarding the abolition of the death penalty between the Council of Europe on the one hand, and Japan and the United States of America on the other hand. It urges these observer states to make a serious effort to bridge this widening gap. The Assembly decides to call into question the continuing observer status of Japan and the United States of America with the organisation as a whole, should no significant progress in the implementation of this Resolution be made by 1 January 2003.

11.        The Assembly decides to henceforth only grant observer status with the Assembly to national parliaments, and to only recommend the granting of observer status to states with the organisation as a whole, for countries which strictly respect a moratorium on executions or have already abolished the death penalty.

II.       Draft recommendation

The Parliamentary Assembly refers to Resolution … (2001) on the abolition of the death penalty in Council of Europe observer states, and recommends that the Committee of Ministers:

i. initiate a dialogue with Japan and the United States of America on the Assembly’s requirements of immediately ameliorating conditions on death row and instituting without delay a moratorium on executions with a view to the future abolition of the death penalty in both countries;

ii. consider which measures the Committee of Ministers might take to encourage compliance by Japan and the United States of America with the Assembly’s resolution;

iii. ensure that, henceforth, observer status with the organisation is granted only to countries which strictly respect a moratorium on executions or have already abolished the death penalty.

III.        Draft order

1.        The Parliamentary Assembly, referring to Resolution … (2001) on the abolition of the death penalty in Council of Europe observer states, resolves to pay special attention to the issue of the death penalty in procedures relating to the granting of observer status with the Assembly or the Council of Europe as a whole and to seize for opinion the Committee on Legal Affairs and Human Rights in every such procedure.

2.        The Assembly instructs its Committee on Legal Affairs and Human Rights and its Political Affairs Committee to enter into a dialogue with parliamentarians from Japan and the United States of America (both state and federal), in order to support legislators in their endeavours to institute moratoria on executions and abolish the death penalty, and in order to engage the opponents of abolition in informed debate.

3.        The Assembly instructs the Committee on Legal Affairs and Human Rights to report back to it on the progress or lack of progress in the implementation of the Assembly’s demands by Japan and the United States of America following expiration of the deadline fixed in Resolution … (2001).

IV.       Explanatory memorandum        by Mrs Wohlwend, Rapporteur

A.       Introduction

1.        The Assembly has always taken a very firm position on the issue of the abolition of capital punishment. In Recommendation 1246 (1994) on the abolition of capital punishment the Assembly considers that the death penalty has no legitimate place in the penal systems of modern civilised societies, and that its application may well be compared with torture and be seen as inhuman and degrading punishment within the meaning of Article 3 of the European Convention on Human Rights, a position also reiterated in Resolution 1187 (1999) on Europe – a death penalty-free continent. The Assembly believes that the imposition of the death penalty has proved ineffective as a deterrent, and owing to the possible fallibility of human justice, also tragic through the execution of innocent people. As a result, the willingness to institute an immediate moratorium on executions and to abolish the death penalty in the long-term has become, since 1994, a precondition for accession to the Council of Europe by virtue of Resolution 1044 (1994) on the abolition of capital punishment, reaffirmed in Resolution 1097 (1996) on the abolition of the death penalty in Europe.

2.        As a result of the Assembly’s position, Europe has become de facto a death-penalty free zone1, with all of the Council of Europe’s 43 member states either having abolished the death penalty, or having instituted a moratorium on executions. This was not easy to achieve, and often needed repeated prodding by the Assembly, for example in the case of Ukraine. However, the momentum towards the abolition of the death penalty in Europe is growing ever more rapidly, Poland being the latest Council of Europe member state to ratify Protocol No. 6 of the European Convention on Human Rights (which provides for the abolition of capital punishment in peacetime). 39 countries have now ratified the Protocol, and a further 3 (Armenia, Azerbaijan, Russia) have signed it with a view to ratification2.

3.        During the debates held in the Assembly on the abolition of the death penalty, some speakers made reference to the United States of America. Many US states still have capital punishment on their statute books, and some states are executing an ever increasing number of prisoners. The speakers felt that it was unfair that the Assembly severely criticised some Council of Europe member states like Russia and Ukraine in relation to the death penalty, while the USA got off without criticism – although it was an observer state.

4.        Convinced of the necessity to treat the abolition of the death penalty in observer states such as the USA, as well, I tabled a motion for a resolution on 5 February 1998 on the abolition of the death penalty in the United States of America together with 28 colleagues representing a wide range of countries and political groups. This motion was referred to the Committee on Legal Affairs and Human Rights for report, which appointed me Rapporteur on 23 March 1998.

5.        Having submitted introductory memoranda to the Committee on Legal Affairs and Human Rights (AS/Jur (1998) 39 and (2000) 21), and having received comments from the Japanese Ministry of Justice, and the United States government, I was authorised by the Committee and the Bureau of the Assembly to go on fact-finding missions to the USA and Japan, the only observer states applying the death penalty, to find out more facts, hear the official position of the authorities, and attempt to explain the Council of Europe’s position in the hope of finding ways of influencing the attitude of the authorities and public opinion.

6.        Unfortunately, I could not go to Japan myself for personal reasons, so the Committee’s Chairman, Mr Gunnar Jansson, was so kind as to replace me at very short notice. The visit, which had been very well organised by the Parliamentary League for the abolition of the death penalty, took place from 19 to 24 February 2001. Also very much involved in the organisation were several NGO activists, including members of Amnesty International Japan and the Japanese NGO „Forum 90“. The programme3 included a meeting with the Minister of Justice and high-ranking officials in his Ministry, and a visit to Tokyo detention centre - where Mr Jansson was allowed to speak to the Director, and was shown an empty cell, but his request (and that of the Japanese MPs accompanying him) to speak to detainees on death row was denied. Mr Jansson also met with the Parliamentary League, and the Vice-President of one of the parties sponsoring a bill aimed at introducing life imprisonment without parole (as the first step to abolition), with the Japanese Federation of Bar Associations, several barristers defending inmates on death row, and ex-detainees of death row who have now been acquitted; families of inmates on death row and NGO activists. The press covered Mr Jansson’s visit very well.

7.        I myself visited the United States of America from 28 March to 6 April 2001, travelling from Washington DC, via Virginia (a retentionist state) and Illinois (a moratorium state) to Wisconsin (an abolitionist state). The programme4 had been organised by the State Department in co-operation with a private firm, Delphi International. Unfortunately, the programme fell far short of my expectations. While I was able to have interesting and fruitful discussions with members of the NGO and academic community, unfortunately the level of the meetings arranged with Federal and State officials, for the most part, made a meaningful dialogue impossible. I particularly regret that no meetings with parliamentarians (on federal or state level) could be arranged. I was allowed to visit two prisons, Greensville Correctional Center in Virginia5, and Columbia Correctional Institution in Wisconsin, and spoke to their Directors, but my requests to visit a death row (in a different prison or pre-trial detention centre) and to speak to inmates there were denied. I was able to meet with one ex-detainee on death row now acquitted. The press coverage of my visit was very low-key.

B.       The death penalty in observer states of the Council of Europe

8.        According to Statutory Resolution (93) 26 on observer status, “any state 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, … , may be granted … observer status with the Organisation.” (see Appendix III).

9.        The Committee of Ministers of the Council of Europe has granted observer status with the organisation to Canada (1996), Japan (1996), Mexico (1999) and the United States of America (1996). The parliaments of Israel, Canada and Mexico have been granted observer states with the Parliamentary Assembly. Of the observer states with the organisation as a whole, Japan and the USA still apply the death penalty. Both of these states will be treated in this report, since there should be no double standards with regard to observer states, as with regard to member states of the Council of Europe.

10.        Observer states must be willing to accept the enjoyment by all persons within their jurisdiction of human rights and fundamental freedoms. While the European Convention on Human Rights (ECHR) still allows for the application of the death penalty “in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law” (Article 2.1), it does not allow for torture, inhuman or degrading treatment or punishment (Article 3). Subsequent texts in the Council of Europe have upheld the right to life more strictly: Protocol No. 6 of the ECHR abolishes the death penalty, and the case-law of the European Court and Commission of Human Rights (especially the landmark Soering case in 1989) finds the “death row phenomenon” to be inhuman and degrading treatment. The Assembly has gone even further, classifying the application of the death penalty itself as an inhuman and degrading punishment, and thus as a violation of the most fundamental human right, that to life itself.

11.        Under these circumstances, the Assembly must consider observer states which still apply the death penalty to be violating human rights, and thus to be in contravention to Statutory Resolution (93) 26 on observer status. It is not my intention to put into question the observer status of Japan or the USA at this point. It is to be hoped that, through intensive dialogue with both of these countries, they may be persuaded to put into place a moratorium on executions. Some people will say that this is an unrealistic goal – but then, was it not unrealistic for the late Hans Göran Franck, my predecessor as the Assembly’s Rapporteur on the abolition of the death penalty who was instrumental in shaping the Assembly’s position on the death penalty, seven years ago to dream of a death-penalty-free Europe, a goal that has now been achieved?

C.       The situation in Japan

12.        At the time of Mr Jansson’s visit in February 2001, some 101 people were imprisoned under sentence of death in Japan, 55 of whose sentences had been upheld by the Supreme Court (or became final in lower courts). The latter prisoners can therefore be executed at any time. The Code of Criminal Procedure stipulates that a death sentence is to be executed within six months of the final verdict upon an order from the Minister of Justice6. In practice, however, most prisoners are under sentence of death for years, some for decades. Since the execution order must be signed by the Minister of Justice, it is, in fact, this Minister who decides when the sentence is carried out, the execution having to take place within 5 days of his giving the execution order7.

13.        Between November 1989 and March 1993, a de facto moratorium on the death penalty was in place in Japan, because the Ministers of Justice in office at the time refused to sign execution orders. Unfortunately, executions resumed in March 1993 – despite a fall in the crime rate (including the murder rate) during the period of the moratorium. Below are the numbers of executions which have taken place in the years 1993 to 2000. The total number of executions during this period is 39, which is three times higher than the total number of executions (13) in the seven-year period of 1982 to 1989. According to non-governmental organisations, over the past five years a pattern has emerged of the government carrying out executions during the parliamentary recess and holiday periods, apparently in order to minimise publicity and avoid a parliamentary reaction.

Year

Number of executions

1993

7

1994

2

1995

6

1996

6

1997

4

1998

6

1999

5

2000

3

14.        There is considerable secrecy surrounding executions in Japan, to the extent that neither prisoners, nor their lawyers or family members, are told in advance of the pending execution. In general, executions – by hanging - are carried out early in the morning, with the prisoner being told just 45 minutes to 1 hour beforehand. The prisoner must thus expect every day to be his last, which exacerbates the mental anguish known as “death row phenomenon”, ruled by the European Court of Human Rights in 1989 to be torture and inhuman treatment. The practice of keeping pending executions secret even from the prisoner himself further deprives him of the opportunity to say farewell to his family8, and makes it impossible for lawyers to file last-minute appeals (e.g. on the basis of insanity). Since the choice of the Minister of Justice whom to execute seems quite arbitrary, following no discernible logic, the fear of the inmates on death row is even more acute. The authorities did not even use to confirm the names of executed prisoners, purportedly to protect the family of the executed from shame, but in the last few years it seems that family members are told after the execution has been carried out.

15.        Japan’s Penal Code provides for the death penalty for a range of offences (17 in number), but in practice it is only applied for aggravated murder. Japanese law excludes the imposition of death sentences on people who were under the age of 18 at the time of the offence, and prohibits the execution of prisoners who are pregnant or suffering from mental illness9. Prisoners can apply for pardons based on the Amnesty Law. The cabinet is empowered to commute death sentences. However, the Prime Minister has used this right only three times in the past three decades - in 1969, 1970 and 1975. There is no formal rule preventing executions from taking place while a petition is being considered. Death row inmates have no right to appear before the National Offenders Rehabilitation Commission, which is responsible for the review of cases. A lawyer, at the request of a prisoner, is allowed to write and submit documents on behalf of the prisoner, but is not permitted to attend the Commission10.

16.        Of the 55 prisoners under finalised sentence of death (held in 7 detention centres around the country), there are three women. At least five prisoners in Japan have been under sentence of death for over 20 years. The oldest prisoner, Mr Tsuneki Tomiyama is now 84 years old and has spent over 29 years in prison since he was sentenced; Mr Tomizo Ishida is 79 years old and has spent 26 years in prison. In 1983, Mr Sakae Menda – whom Mr Jansson met - was acquitted after having spent 33 years under the sentence of death. Mr Masao Akahori – whom Mr Jansson also met - was 25 when he was arrested; when he was acquitted in 1989 at the age of 59, he had spent over 30 years under sentence of death11.

17.        Conditions of detention are extremely harsh for those sentenced to death. Japanese law states that prisoners sentenced to death shall be treated like unconvicted prisoners. In practice their fate depends on the policies imposed by the Ministry of Justice and detention centre directors. In most detention centres there are examples of very harsh treatment. Some prisoners sentenced to death have been held in almost complete solitude for years12. Often, prisoners may only be visited by their immediate family (in some cases, adopted family does not qualify), and by their lawyers, provided that they are preparing an appeal, retrial or pardon request. Many conservative families renounce murderers, so that there are many prisoners under finalised sentence of death who have no outside contact whatsoever13, except perhaps spiritual guidance by a monk or priest. Contact with other prisoners or guards is forbidden in any case. In addition, some directors of detention centres impose further arbitrary restrictions: Some death row inmates may not read newspapers, or write letters. Thus, in many cases, the isolation of the prisoners is so complete as to qualify as inhuman treatment in and of itself.

18.        According to lawyers cited by Amnesty International, prisoners sentenced to death in Japan are held in small cells where the lights are never switched off, only dimmed. Sometimes, to accommodate the need for light for the surveillance cameras, lights are not even dimmed. There are strict rules on every aspect of prison life. When detained in a single cell, unconvicted prisoners and death row inmates are prohibited from walking around and lying down freely: a particular sitting posture must be maintained. To sleep outside normal hours, prisoners need special permission. Prisoners normally exercise outside their cell or in a courtyard for 30 minutes on weekdays. Prisoners who disobey rules are liable to punishment, which may include solitary confinement (keiheikin) for many days (with a maximum of two months), or cancellation of visits, of permission to send letters or to receive reading material. Most prisoners sentenced to death have experienced keiheikin. Such conditions14 would probably be termed inhuman and degrading treatment in Europe, outlawed under the European Convention on Human Rights15.

19.        There is a specifically Japanese characteristic in the official position of the Japanese Ministry of Justice on the death penalty which is particularly cruel: the search for obtaining what the Ministry calls “peace of mind” of death row inmates. In this way of thinking, a death row inmate is to find “peace of mind” before he is executed, that is to say he is to be “ready” for death, accepting, even welcoming of the execution. Inmates on death row are to stop believing – or even hoping – that they will live any longer; they are to resign themselves to death, to accept it as atonement for their crimes. This seems to be why they are isolated as much as possible from society: so that they may lose hope16.

20.        An added concern is, once more, the fallibility of human justice, which can lead to the execution of innocent people. Many death row inmates in Japan claim not to have had access to a lawyer after their arrest, to have been beaten and tortured and to have confessed under duress17. It is very difficult for a convicted prisoner to obtain a judicial review of his or her sentence once it has been finalised, since new evidence indicating innocence must be uncovered first (or the evidence on which the original judgment was based must have been proven false). The Japanese Federation of Bar Associations (JFBA), not against the death penalty in principle, contends that the Japanese criminal procedure fails to meet the requirements of international standards in terms of protection of those facing the death penalty18, raising, inter alia, the following points: “no provision to guarantee the official defense counsel for suspects” 19, no mandatory appeal system for death penalty cases20, no guarantee of suspension of an execution procedure when the defendant appeals for retrial or clemency. The JFBA concludes that the current system of execution is a violation of the ICCPR, and calls on the Japanese government to suspend all executions21.

21.        In the 1980s, four prisoners convicted of murder in separate cases in the 1950s were acquitted after they had succeeded in obtaining retrials, and the courts found that there was insufficient evidence of their guilt (three of the four had at the time, under duress, confessed to the crimes they were accused of). Thus it is possible that some of the current death row inmates were convicted unfairly, and are indeed innocent22.

22.        Indeed, one wonders whether the application of the death penalty is only the tip of the iceberg concerning alleged human rights violations in Japan. Many factors which aggravate the application of the death penalty in Japan are problematic in and of themselves: There are credible allegations of torture and forced confessions in “substitute” prisons23; there are doubts about the presumption of innocence being applied; the parliament and the government seem rather weak, vesting too much power in an elite bureaucracy which harks back to the times when the Emperor was the only source of power24.

23.        In view of the low and ever decreasing crime rate in Japan, the secrecy surrounding executions and the low number of executions - so low to be only symbolic – it is clear that the death penalty has no deterrent effect in Japan. Public opinion in Japan is slowly changing; while government-sponsored opinion polls show a majority of Japanese favouring retention of the death penalty, NGO-run opinion polls show the opposite. The main reason the Minister of Justice cited in favour of retaining the death penalty was that public opinion was in favour. However, this is an issue where European parliamentarians have found that it is necessary to lead, not follow public opinion. The abolitionist movement in the Japanese parliament (the Parliamentary League for the abolition of the death penalty), while not numerous in membership, is very active and committed. Their efforts to have a moratorium on executions re-introduced, and the death penalty abolished, should be encouraged and supported by the Council of Europe.


D.       The situation in the United States of America

24.        At the time of my visit, 3.726 persons were on death row in the United States of America25, 57 of them women. 40 jurisdictions in the USA26 have death penalty statutes, 1327 have not. In 1972, the Supreme Court effectively imposed a moratorium on executions by virtue of its decision Furman vs. Georgia (1972), ruling the application of the death penalty unconstitutional because it was being applied in an arbitrary and capricious manner. In 1976, however, the Supreme Court ruled in Gregg vs. Georgia (1976) that the death penalty did not violate the Constitution if it was administered in a manner designed to protect against arbitrariness. This ruling was used by the states, and eventually the Federal Government, to reintroduce the death penalty in accordance with certain guidelines and provisions aimed at eliminating arbitrariness.

25.        According to information provided by several non-governmental organisations, since 1977, 712 persons have been executed in 30 states, most of them in the 1990s. The most recent figures are as follows:

Year

Number of executions

1996

45

1997

74

1998

68

1999

98

2000

85

2001 (to date)

29

27.        In contravention of international standards, since 1990, 17 juvenile offenders have been put to death; some 72 other juvenile offenders are awaiting execution on death row. The USA also executes persons with mental retardation and illness – 35 to date, with an estimated further 200 to 300 awaiting execution. More than 70 foreign citizens are awaiting execution; some of them have been denied the right to contact their diplomatic representations in contravention of international treaties ratified by the USA. In 1998, a Paraguayan citizen was executed, despite an order by the International Court of Justice in the Hague that his execution be suspended. In early 1999, two German nationals were executed in the US state of Arizona despite a request for adjudication lodged by the German government at the International Court of Justice.

28.        The concern about the increased use and expanded scope of the death penalty in the USA is compounded by serious allegations that the defendants are not always granted fair trials by the criminal justice system, and that the decision to apply the death penalty remains arbitrary, and often racially and class discriminative. In the words of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions: “… race, ethnic origin and economic status appear to be key determinants of who will, and who will not, receive a death sentence.” Poor and minority defendants often receive inadequate legal assistance at state-trial and state-appellate stages – and even less assistance at state habeas corpus levels. For example, “striking a juror” constitutes one of the most important elements of the trial in capital cases, for which very high legal skills are required – skills most poor defendants simply cannot pay for, putting them at a distinct disadvantage.28 Amnesty International has even documented cases in which the defense counsel actually slept during the trial. The American Bar Association already found in 1990 that the inadequacy – and the inadequate compensation – of counsel at trial constituted the principal failing of the capital punishment system.

29.        In addition, there is no judicial or administrative control over the prosecutorial discretion of the prosecutors empowered to seek the death penalty in “death-qualified” crimes29. In other words, the individual prosecutor exercises uncontrolled and unbridled discretion in capital-sentencing states (there are no mandatory death penalty statutes). The problem is even worse in many of the states where prosecutors are elected officials, and thus vulnerable to public opinion, which still seems to favour the death penalty in most cases. Some prosecutors even base their decision on whether to ask for the death penalty on the beliefs held by victims’ relatives, or on public outrage. In most US states, judges are also elected rather than appointed, curtailing their factual independence from public opinion.

30.        As the International Commission of Jurists pointed out in its June 1996 report on the administration of the death penalty in the United States, even a trial by jury for capital crimes does not guarantee a fair and impartial tribunal in death-sentence cases, since the selection of “death-qualified” juries excludes jurors who are averse to the death penalty. This has worked to the advantage of the prosecutor, who can create juries perhaps predisposed to convict and certainly predisposed to impose the ultimate sanction. In Alabama, Florida, Delaware, Indiana and Colorado, state law even empowers the judge to overrule the jury when it recommends life imprisonment instead of the death penalty – which the judges frequently do. The present requirement of a “death qualified” jury in US law comes perilously close, in practice, to creating a “hanging jury”.

31.        The effect of the Anti-terrorism and Effective Death Penalty Act signed into law by President Clinton in April 1996 has been pernicious, preventing many appeals of prisoners on death row. In addition, the withdrawal of funding for post-conviction defender organisations seriously limits the extent to which fair trial standards are fully available during the process leading to the imposition of a death sentence. “Consensual” executions also appear to be a growing phenomenon on death row in the USA, with 89 of those executed since 1977 having given up their appeals, sometimes even asking to be put to death. As Amnesty International has pointed out, consensual executions are not the product of a prisoner’s freely taken decision to end their own life, but may be a refusal to face the appalling strains of living under a sentence of death, often in harsh conditions and in almost total isolation.

32.        Conditions on death row in the USA seem to vary from state to state, but can be described as harsh in most cases, with small cells and often segregation. Especially harsh is what is called “death-row-phenomenon”, the mental torture inmates have to go through while waiting for years on death row for their sentence to be executed, while they go through various appeal and pardon procedures. Many death row inmates are scheduled for execution several times, receiving stays of execution virtually at the last minute – sometimes already strapped to the electric chair, or the needles for the lethal injection already inserted in their arms30. The European Court of Human Rights has ruled this to be a form of inhuman and degrading treatment and punishment.

33.        The fallibility of human justice, which can lead to the execution of innocent people, is made blatantly clear in the USA, where at least 94 people have been released from death-row since 1973 following evidence of their innocence31. An even higher number of people, whose guilt was in doubt, has actually been executed. Clemency and commutation have been the historic remedies for preventing miscarriages of justice where the judicial process has been exhausted. Unfortunately, the US Constitution does not require a state to provide a death penalty clemency process, although most states do. However, these processes are often a farce: for example, the Texas Board of Pardons and Paroles has never recommended commutation after considering a request from a condemned inmate, and has held only one clemency hearing in a death penalty case.

34.        Taking into account the factors described above, the imposition of the death penalty in the USA seems to remain arbitrary even after Furman vs. Georgia. In fact, it can be questioned whether capital punishment can ever be applied evenly and justly; but the USA is manifestly moving in the opposite direction. The tide of public opinion currently seems to be at a turning point: In the most recent Gallup poll of February 2000, the percentage of those in favour of capital punishment fell from around 75% to 66%, with support dropping to 52% when the alternative of life without parole was given32. According to another recent poll, 73% of Americans support a moratorium on executions. However, few members of parliament and prosecutors, but more lawyers and judges are pro-abolitionist. In many European countries, however, the decision to abolish the death penalty was taken by parliament and/or government against the wishes of the public – with public opinion only following several years later. The case of Timothy McVeigh’s execution, the first federal execution in decades, has stimulated public debate, the outcome of which is not clear at this moment. 33

35.        Nevertheless, the risk of executing innocent people and executing people arbitrarily in the US is growing. A moratorium on executions would seem the only appropriate solution to the situation. This view is shared by the Governor of Illinois, George Ryan, who instituted a moratorium on executions in his state at the beginning of February 2000, after the 13th innocent man had been released from Illinois’ death row. Governor Ryan said that the death-penalty system is “fraught with error and has come so close to the ultimate nightmare… Until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate”.

36.        In fact, the fear of an innocent person going to the gallows seems to weigh more in American minds than the rights or wrongs of judicial execution per se. This is one of the problems the widening moratorium-movement is coming up against: Many NGOs fear that the multiple study commissions on state and federal level will find errors in the application of the death penalty, such as the issues mentioned above (execution of the innocent, juvenile offenders, the mentally retarded, factual discrimination on the basis of race and poverty, too restrictive appellate process), and thus support a moratorium – in order to give time for the system to be “fixed”.

37.        One example of a federal effort to “fix the system” is the bi-partisan “Innocence Protection Act” bill of 2001, sponsored by Senator Leahy and Congressman Delahunt. This bill aims at reducing the risk that innocent persons may be executed, through affording greater access to DNA testing by convicted offenders, and improving the quality of legal representation in capital cases. In the view of the abolitionists, however, the death penalty system in the USA is too flawed to be fixed. I share this view, because the fundamental question is the justice of the death penalty itself. The fact is, there is no “right” way to apply the death penalty, because the death penalty itself is wrong.

E.       Conclusions

38.        The Assembly has been in complete opposition to capital punishment for decades. It considers that the death penalty has no legitimate place in the penal systems of modern civilised societies, and that its application constitutes torture and inhuman and degrading punishment within the meaning of Article 3 of the European Convention on Human Rights. The Assembly thus made the willingness to institute an immediate moratorium on executions and to abolish the death penalty in the long-term, in 1994, a precondition for accession to the Council of Europe. As a result, the 43 countries which make up the Council of Europe have been a de facto death penalty-free zone since 1997.

39.        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. While the Assembly must, of course, condemn all executions, wherever they are carried out, the Assembly can but be particularly disturbed about executions carried out in observer states which have committed themselves to respect human rights, i.e. Japan and the United States of America. The Assembly can also but be very concerned about conditions on death row, both in Japan and in the United States of America, exacerbating the mental anguish known as “death row phenomenon”, which was expressly declared a violation of human rights by the European Court of Human Rights in 1989.

40.        When Japan and the United States of America were granted observer status with the Council of Europe, the organisation’s position on capital punishment was already clear, but had not yet been taken on board by all European states. Today, the Council of Europe does not accept countries in its midst which carry out executions. Viewing the application of the death penalty as a violation of the most fundamental human rights, such as the right to life, and the right to be protected against torture and inhuman and degrading treatment, the Assembly can but find Japan and the United States of America in violation of its obligations under Statutory Resolution (93) 26 on observer status.

41.        The Assembly should therefore require of Japan and the United States of America to:

42.        The Assembly and the Committee of Ministers should, of course, take all measures to assist Japan and the United States of America in instituting moratoria on executions and abolishing the death penalty. To this end, the Assembly and the Committee of Ministers should initiate and promote dialogue with their respective counterparts from Japan and the United States of America (both state and federal) in all forms, in order to support those endeavouring to institute moratoria on executions and abolish the death penalty, and to engage the opponents of abolition in informed debate.

43.        At the same time, however, the Assembly should decide to call into question the continuing observer status of Japan and the United States of America with the organisation as a whole, should no significant progress in the implementation of the Assembly’s demands be made by 1 January 2003. The Committee of Ministers should also consider which measures it might take to encourage the compliance of Japan and the United States of America with the Assembly’s demands.

44.        The Assembly should avoid creating any more problematic situations of this type in the future, and should thus decide to henceforth only grant observer status with the Assembly to national parliaments, and to only recommend the granting of observer status with the organisation as a whole, to countries which strictly respect a moratorium on executions or have already abolished the death penalty. The Committee of Ministers should be asked to do likewise.

APPENDIX I

PROGRAMME

of the visit to Japan of Mr Gunnar Jansson,

Chairperson of the Committee on Legal Affairs and Human Rights

19-23 February 2001

Monday 19 February 2001

9 h 50       Arrival at Narita airport, Tokyo

      Check in (Hotel New Otani)

14 h 30       Informal briefing with Mr Yasuda, lawyer and NGO activist

16 h 30       Press Conference (Legal Press Club)

19 h       Informal working dinner with NGOs: Amnesty Japan and Forum 90

Tuesday 20 February 2001

9 h – 12 h       Meeting with Mr Menda, ex-prisoner on death row

12 h       Lunch with Mr Menda and Mr Yasuda

13 h – 15 h       Meeting with relatives of convicted prisoners on death row and with UNITE, citizen association for death row solidarity

16 h – 19 h       Meeting with lawyers of defendants sentenced to death:

      Mr Endo, Mr Kaido and Mr Akiyama

19 h       Informal welcome dinner sponsored by NGOs

Wednesday 21 February 2001

11 h       Interview with the "Evening News"

12 h       Lunch (free)

13 h – 15 h       Meeting with the Japanese Bar Association, including:

15 h 30 – 17 h       Panel discussion with members of the Parliamentary League for the abolition of the death penalty (Diet)

17 h       Interview with the "Daily News"

18 h       Informal briefing

20 h       Dinner with the Chairperson, Secretary-General and members of the Parliamentary League (Mrs Takemura, Mr Hosaka, Mrs Oshima)

Thursday 22 February 2001

10 h       Meeting with the Minister of Justice, Mr Komura

      Administrative Vice-Minister, Mr Matsuo,

      Director-Generals of the Criminal Affairs

12 h       Lunch with the Chairperson and Members of the Parliamentary League

14 h – 16 h       Visit to Tokyo Detention Center

      Meeting with the prison authorities,

18 h       Joint Press Conference with the Parliamentary League

19 h 30       Live interview on Italian State Radio

20 h 30        Informal dinner with Counsellor Bertoldi,

Friday 23 February 2001

10 h 30       Meeting with Mrs Hamayotsu, Vice-President of the Komeito-Party, sponsor of the bill introducing life imprisonment without parole

12 h       Press lunch at the Foreign Correspondents’ Club

13 h 30       Leave for Nagoya

16 h 30       Meetings with local activists and ex prisoners on death row

20 h       Local press conference

21 h 30       Departure for Tokyo

APPENDIX II

PROGRAMME

of the visit to the United States of America

of Mrs Renate Wohlwend,

Rapporteur on the abolition of the death penalty

28 March – 6 April 2001

Wednesday, 28 March 2001

14 h 50       Arrival at Dulles airport, Washington DC

      Check in (The Jurys Hotel)

17 h 30       Programme briefing at Delphi International with

      Mrs Ilona Cofman, English language officer

      (US Department of State)

Thursday, 29 March 2001

7 h 30       - 8 h 30       Breakfast meeting with NGO Human Rights Watch with

      Mrs Elisabeth Anderson, Advocacy Director

      Mrs Alison Cullen, Senior Researcher

9 h – 10 h 30        Meeting at the Congressional Research Service with

      Mrs Elizabeth Bazan, Research Lawyer

      Mr Charles Doyle, Senior Specialist

11 h - 12 h       Meeting at the US Department of State with inter alia

12 h 30 – 13 h 30       Working lunch with Professor Jonathan Turley

      of George Washington University

14 h – 15 h       Meeting at the US Department of Justice with

16 h – 17 h       Meeting at the US Sentencing Commission with

      Professor Michael O’Neill, Commissioner

17 h 30 – 19 h       Meeting at the American Bar Association Death Penalty

      Representation Project with Mrs Elisabeth Semel, Director

Friday, 30 March 2001

8 h – 9 h       Breakfast meeting with Mr Allan Weinstein

      Director of the NGO Center for Democracy

9 h – 11 h        Roundtable panel discussion with NGOs (Hotel) with

      MM. Steven W. Hawkins, Executive Director

      National Coalition to Abolish the Death Penalty

      MM. Ajuma Baraka, Director

      Mrs Rachel King, Legislative Counsel of

      American Civil Liberties Union (ACLU)

      Mrs Paula Bernstein, Information Officer of the

      Death Penalty Information Center

      Mr Wayne Smith, Executive Director of the Justice Project

      Mrs Virginia Sloan, Executive Director of the Constitution Project

11 h 30 – 12 h 30       Meeting with Professor Bill Otis, Adjunct Professor of Law

      George Mason University

13 h – 13 h 30       Working lunch with Mr Peter Simpson, Delphi International

14 h – 14 h 45       Meeting with Mrs Farhana Khera,

      Legislative Assistant of Senator Russell D. Feingold

15 h – 15 h 15       Meeting with Mr John Boling Jr.,

      Senior Legislative Assistant of Congressman John E. Sweeney

16 h – 17 h 15       Meeting with Mr Mark David Agrast,

      Counsel and Legislative Director of the Office of

Saturday, 31 March 2001

7 h       Departure for Richmond (Virginia)

      Check in (Radisson Historical District Hotel)

10 h – 16 h        Participation in the 2001 Bi-Annual Meeting of

      Virginians for Alternatives to the Death Penalty

      Organised by Mr Henry Haller

Sunday, 1 April 2001

Free time

Monday, 2 April 2001

7 h        Departure from Richmond (Virginia)

8 h 30 – 11 h 30        Visit of Greensville Correctional Center (Virginia)

      Meeting with Mr Dave Garraghty, Warden

13 h 30 – 14 h 30       Meeting with Mr Alexander H. Slaughter

      Attorney at McGuireWoods LLP, Richmond (Virginia)

15 h 30 – 16 h 30        Meeting with Dr Kirk Jonas, Deputy Director

      and Mr Wayne Turnage, Team Leader, of the

16 h 45        Departure for Richmond Airport

      Flight to Chicago (Illinois),

Tuesday, 3 April 2001

9 h        Meeting with Mr Locke Bowman, Legal Director

      MacArthur Justice Center

      University of Chicago School of Law

10 h 30        Meeting with the Illinois Branch of the ACLU

      Mrs Aviva Futorian, Attorney

      Mr Benjamin S. Wolf, Director and Counsel

      Institutionalised Persons Project

12 h – 13 h        Meeting with Mr Matthew R. Bettenhausen

      Deputy Governor (Criminal Justice/Public Safety)

      Mr Rick Guzman, Assistant Policy Advisor

      Office of Illinois State Governor George H. Ryan

15 h – 16 h        Meeting with the Illinois Branch of AI

      Mrs Nancy J. Bothne, Midwest Regional Director

      Mr William Robert Schultz, Death Penalty Program Coordinator

16 h 30 – 19 h 30        Meeting at the home of Mr Rob Warden, Executive Director

      Professor Lawrence Marshall

      Northwestern University School of Law

      Mr Rolando Cruz, exonerated from death row

      

Wednesday, 4 April 2001

10 h – 11 h        Meeting at Cook County State’s Attorney’s Office

      with Mr Tom Gainer, Assistant State’s Attorney

13 h 30        Departure for Chicago Airport

      Flight to Madison (Wisconsin)

18 h       Check in (Best Western Inn on the Park)

Thursday, 5 April 2001

8 h 30 – 9 h 30        Meeting with Professor Linda S. Greene

      Associate Vice-Chancellor for Academic Affairs

      University of Wisconsin

10 h – 10 h 15       Meeting with Mr James Wawrzyn

      Policy Advisor to Wisconsin State Governor Scott McCallum

11 h – 12 h        Meeting with Mrs Burneatta L. Bridge

      Deputy Attorney General

      State of Wisconsin Department of Justice

12 h 30 – 13 h        Meeting with Mrs Shirley Abrahamson

      Chief Justice, State of Wisconsin Supreme Court

13 h        Departure for Portage (Wisconsin)

14 h – 16 h 30        Visit to Columbia Correctional Institution

      Meeting with Mr Phil Kingston, Warden

17 h 30        Meeting with Professor John McAdams

      Marquette University Department of Political Science

Friday, 6 April 2001

4 h        Departure for Chicago Airport

      Flight to Washington D.C.

12 h 45        Press conference (National Press Club)

15 h        Departure for Dulles Airport (Washington D.C.)

      Flight to Zurich

APPENDIX III

COUNCIL OF EUROPE

COMMITTEE OF MINISTERS

________

STATUTORY RESOLUTION (93) 26

ON OBSERVER STATUS

(Adopted by the Committee of Ministers on 14 May 1993
at its 92nd Session)

The Committee of Ministers, under the terms of Articles 15.a and 16 of the Statute of the Council of Europe,

Having regard to the Parliamentary Assembly's proposals for institutional reforms within the Council of Europe;

Bearing in mind the changed political situation in Europe and the world;

Convinced that this situation requires increased co-operation between the Council of Europe and non-member states sharing the Organisation's ideals and values;

Considering that an institutional framework should be given to such co-operation;

Considering that the provisions hereinafter set out are not inconsistent with the Statute of the Council of Europe,

Resolves as follows :

I.    Any State 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, and wishing to co-operate with the Council of Europe may be granted by the Committee of Ministers, after consulting the Parliamentary Assembly, observer status with the Organisation.

II.    States enjoying observer status shall be entitled to send observers to those of the Council of Europe Committees of experts which were set up under Article 17 of the Statute and to which all member states are entitled to designate participants.

III.    States enjoying observer status shall be entitled, upon invitation by the host country, to send observers to conferences of specialised ministers.

IV.    Decisions on inviting states enjoying observer status to participate in the activities of Partial, Enlarged or Enlarged Partial Agreements shall be taken in accordance with the rules applicable to the respective agreement.

V.    Observer status gives no right to be represented on the Committee of Ministers or the Parliamentary Assembly unless a specific decision has been taken by one of these organs on its own behalf.

VI.    States enjoying observer status may appoint a permanent observer to the Council of Europe.

VII.    An international intergovernmental organisation willing to co-operate closely with the Council of Europe and deemed able to make an important contribution to its work, may be granted by the Committee of Ministers, after consulting the Parliamentary Assembly, observer status with the rights set out in Articles II, III and IV for states enjoying observer status.

VIII. The Committee of Ministers may suspend and, after consulting the Parliamentary Assembly, withdraw observer status.

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 8002, Reference No 2253 of 18 March 1998

Draft resolution adopted by the Committee on 5 June 2001 with 15 votes in favour, 1 vote against and 1 abstention, draft recommendation and draft order adopted with 16 votes in favour and 1 vote against

Members of the Committee: Mr Jansson (Chairperson), Mr Magnusson, Mr Frunda, Mrs Gülek (Vice-Chairpersons), Mr Akçali, Mr G. Aliyev, Mr Andreoli, Mrs van Ardenne-van der Hoeven, Mr Attard Montalto, Mr Bartumeu Cassany, Mr Bindig, Mr Bordas, Mr Brecj, Mr Bruce, Mr Bulavinov, Mr Clerfayt, Mr Contestabile, Mr Demetriou, Mr Dimas, Mr Enright, Mrs Err, Mr Evangelisti, Mr Floros, Mrs Frimansdóttir, Mr Fyodorov, Mr Guardans, Mr Gustafsson, Mrs Hadjiyeva, Mr Holovaty, Mr Irtemçelik, Mr Jaskiernia, Mr Jurgens, Mr Kelemen, Lord Kirkhill, Mr Kostytsky, Mr S. Kovalev, Mr Kresák, Mr Kroupa, Mrs Krzyzanowska, Mr Lacão, Mr Lento, Ms Libane, Mr Lintner, Mr Lippelt, Mr Loutfi, Mrs Markovic-Dimova, Mr Marty, Mr McNamara, Mr Michel (alternate: Mr Hunault), Mr Moeller, Mrs Nabholz-Haidegger, Mr Olteanu, Mr Pavlov, Mr Pollo, Mrs Postoica, Mrs Pourtaud (alterntate: Mr Dreyfus-Schmidt), Mr Rodeghiero, Mrs Roudy, Mr Rusytamyan, Mr Shaklein, Mr Simonsen, Mr Skrabalo, Mr Solé Tura, Mr Spindelegger, Mr Stankevic, Mr Stoica (alternate: Mr Coifan), Mrs Süssmuth, Mr Svoboda, Mr Symonenko, Mr Tabajdi, Mr Tallo, Mrs Tevdoradze, Mr Uriarte, Mr Vanoost, Mr Vera Jardim, Mr Wilkinson (alternate: Lord Rotherwick), Mrs Wohlwend, Mr Wojcik, Mrs Wurm

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the Committee: Mr Plate, Ms Coin, Ms Kleinsorge, Mr Cupina


1 Not all European member states which are not yet members of the Council of Europe have abolished the death penalty. Monaco and Bosnia and Herzegovina are abolitionist, but the Federal Republic of Yugoslavia still has the death penalty on its statute books, and Belarus continues to execute prisoners.

2 The only country which has neither signed nor ratified the Protocol is Turkey. However, Turkey has been observing a moratorium on executions for 17 years now.

3 For the full programme, please see Appendix I.

4 For the full programme, please see Appendix II.

5 I was shown the execution chamber at this prison, and the three empty cells where prisoners sentenced to death spend the last days of their lives.

6 As the Ministry of Justice of Japan pointed out, in cases where the defendant has made an appeal, or has requested the re-opening of the procedure, or an extraordinary appeal or petition or recommendation for amnesty has been made, the time it takes until these procedures are exhausted and the final judgment is rendered is not calculated in the term of six months (cf Article 275 of the Code of Criminal Procedure).

7 The Ministry of Justice of Japan commented as follows on this paragraph: “The general procedure of execution of the death penalty is as follows: After the sentence has become final, the head of the Public Prosecutor’s Office concerned presents a report about the case to the Minister of Justice with a view to examining the possibility of its execution, then the Minister orders the department concerned in the Ministry of Justice to examine the judgment and the records of the hearings carefully and to examine whether there is cause for a stay of execution, a reopening of the case, an extraordinary appeal, circumstances in which amnesty is appropriate or other causes. If it is confirmed that these causes or others do not exist, the Minister orders the execution of the death penalty. The time of the execution depends on the work required in such a procedure.”

8 In one particularly shocking case, the mother of the prisoner Mr Shuji Kimura came to visit her son in the morning of 21 December 1995, and was told that visiting hours were very busy, she should return at noon. When she returned, she was asked whether she wanted to take her son’s body away for burial.

9 Insanity or mental illness is an impediment under Japanese law not only to sentencing a defendant to death, but also to executing him, even if the illness starts only in prison. Amnesty International has highlighted one case, that of Mr Tetsuo Kawanaka, who was executed in March 1993 despite a doctor’s report that he was mentally ill.

10 In the case of Mr. Shinji Kimura, a petition for pardon was submitted by his lawyer. He was executed, however, on 21 December 1995 without notification to his lawyer and without due regard to the result of his petition.

11 Mr Akahori, who is mildly mentally retarded, is having considerable problems living outside the prison. He cannot, for example, go shopping for food, because he is so shocked by the “high” prices – in comparison to 30 years ago – that he cannot bring himself to buy anything.

12 The Ministry of Justice of Japan pointed out that inmates whose death sentences became final are generally treated in a similar manner to inmates in pre-trial detention. Decisions on an inmate’s correspondence and visitation rights were taken on a case-by-case basis. Open-air exercise was conducted for 30 minutes a day for inmates who wished to avail themselves of this possibility. The Ministry of Justice admitted that many inmates on death row were placed in a single room in compliance with laws and regulations, in order to prevent inmates becoming desperate and attempting to commit suicide or kill or harm others .

13 Even Japanese members of parliament are not given access to death row; journalists and human rights activists are not even allowed inside a prison.

14 One case which illustrates the situation of prisoners under the sentence of death in Japan is that of Mr Ota Katsunori, a prisoner on death row for 15 years, who was found dead in Sapporo Detention Centre on 8 November 1999. He was reported to have committed suicide by slashing his neck with a razor blade while taking a bath.

15 The Japanese Ministry of Justice comments this conclusion as follows: “However, unless discipline and order in penal institutions are strictly maintained, rule violations among inmates would be rampant with inmates bullying and abusing other inmates. This deteriorating situation would lead to more serious accidents such as riots and escapes, which would inspire public fear and hinder penal institutions from achieving its primary goal: safe custody of inmates. ... The fact that most inmates understand the importance of prison rules and accept them in their daily life (...) clearly demonstrates that Japanese prisons impose minimum rules necessary for achieving its institutional goal. … In other words, absence of unjustifiable rules gives grounds for a sound prison environment where few accidents occur; peace and order are maintained; and physical security is ensured for vulnerable inmates protected from fellow inmates’ abuse”. I am afraid I do not agree with this reasoning. The European experience has been that, while discipline and order must be maintained in prisons, at all costs must degrading treatment and punishment be avoided.

16 Mr Jansson’s requests to meet with death row prisoners were denied on the basis of such a visit possibly disturbing the “peace of mind” of these inmates. In one case, this reasoning was especially inappropriate, since Mr Jansson had asked to meet with one inmate, whose wife (who visits him every day) had informed Mr Jansson in person that her husband wished to meet with him.

17 In one particularly worrying case, Amnesty International reports that one prisoner, now aged 64, claimed that he was interrogated for 20 days, 12 hours a day on average, after his arrest in August 1966. During this time, he claims he was beaten, denied food and water for lengthy periods and subjected to sleep deprivation. He claims he was allowed to see his lawyer only three times during this interrogation period, and thus was forced to make a confession. He has applied for a retrial without success and has now been under sentence of death for 33 years.

18 Letter of request written by the President of the Japan Federation of Bar Associations to the Minister of Justice, 19 November 1997.

19 The Research Committee on the Death Penalty of the JFBA found that almost half of the prisoners on death row did not have legal assistance before the court appointed official defence counsel. Half of those who did have access to a lawyer beforehand, had it less than three times. Such meetings were limited to 10 to 15 minutes.

20 In fact, some prisoners on death row drop or withdraw their appeals, often when they are no longer represented by a lawyer (in the “interregnum” between representation by a court-appointed lawyer of first and second instance).

21 Ibid.

22 The Japanese Ministry of Justice disagrees with the latter two paragraphs.

23 The system of “substitute” prisons (daiyo-kangoku) is one of extended police custody (23 days), as the prison law allows for police cells to be used as jails. Under the sole control of the police, it is alleged that the system is widely abused to coerce confessions.

24

For example, the prison law dates from 1908, another era when all power derived from the Emperor, and has still not been amended despite numerous attempts in parliament.

25

31of them on federal death row (of them 7 for military offences).

26 Alabama, Arizona, Arkansas, California, Colorado, Connecticut (no executions since 1976), Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas (no executions since 1976), Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire (no executions since 1976), New Jersey (no executions since 1976), New Mexico (no executions since 1976), New York (no executions since 1976), North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota (no executions since 1976) Tennessee, Texas, Utah, Virginia, Washington, Wyoming, US Federal Government (no executions since 1976), US Federal Military (no executions since 1976).

27 Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin, District of Columbia.

28 Without adequate funding, it is also difficult to hire necessary experts or conduct complete independent investigations.

29 However, the decision of prosecutors in federal capital cases is based on written guidelines, reviewed within the Justice Department, and must be approved by the Attorney-General.

30 In Greensville Correctional Center (Virginia), for example, the L-Unit, where inmates are kept just before their execution, has three cells. The inmate is moved every day one cell closer to the execution chamber. What is that if not mental torture?

31 Innocent inmates released from death row spent an average of 8.25 years incarcerated, according to the Death Penalty Information Center.

32 Interestingly, in the state of Virginia, which has executed the second highest number of people in the USA since 1976, results of the 1999 annual poll reaffirm that support for the death penalty dwindles to a minority when the public is given the alternative of a life sentence, with no possibility for parole for a minimum of 25 years, combined with restitution to the victims’ families.

33 More questions were raised about the fallibility of the criminal justice system and the advisability of an irreversible punishment when just days before Mr McVeigh’s scheduled execution date, the FBI revealed it had withheld thousands of pages of evidence in the case. Many wondered how a mistake of such scale was possible in a case as scrutinised as Mr McVeigh’s, and many pondered how often similar mistakes or misconduct occurred in lower profile cases that affected a finding of guilt or a sentence of death.