Moving Away from the Death Penalty - Wrongful Convictions
- 11 Oct 2013
Source: British Embassy Hanoi
Only 58 countries retain the death penalty. The UK rejected the death penalty in 1965, very much following the global trend. We hope to see Vietnam continue this trend.
Like other countries that work against capital punishment we think there should be a debate in Vietnam, which recently carried out its first execution after a two year de facto moratorium, on this issue.
To commemorate World Day Against the Death Penalty, Saul Lehrfreund Co-Executive Director from The Death Penalty Project, an international non-governmental organisation, has kindly allowed us to reproduce an edited statement he gave to a United Nations panel on the death penalty this year. We hope this, and forthcoming embassy events on the death penalty, will make you think about this issue. Please let us know your thoughts.
Following is the full text by Saul Lehrfreund:
THE UK AND WRONGFUL CONVICTIONS
The rejection of capital punishment in the United Kingdom in 1965, has been further fortified by a series of cases where the British Courts have posthumously reviewed the safety of the murder convictions of individuals who were executed. In 1998, the Court of Appeal quashed the conviction of Mahmoud Hussein Mattain, who was hanged in Cardiff Prison on 8 September 1952. In delivering judgement, Lord Justice Rose stated that the case had wide significance and clearly demonstrated that “Capital punishment was not … an appropriate culmination for a criminal justice system which was human and therefore fallible.”
HUMAN RIGHTS LAW
Human rights law is clear that fair trial guarantees in death penalty cases must be implemented in all cases without exception. Those facing the death penalty should be afforded special protection and all guarantees to ensure a fair trial above and beyond the protection afforded in non-capital cases.
Whilst retention of the death penalty is permitted by the International Covenant on Civil and Political Rights (ICCPR) (article 6(2)) in extremely limited circumstances pending abolition, use of the death penalty will become an arbitrary deprivation of the right to life if capital punishment is imposed in circumstances that breach other rights under this International Covenant, in particular, the right to a fair trial (article 14) and the prohibition on torture and inhuman and degrading treatment (article 7). The restrictions set out in the International Covenant on Civil and Political Rights are further developed in the Safeguards protecting the Rights of those facing the Death Penalty. All states are bound by these standards which should be considered as the general law applicable to the death penalty, the significance of which has been reaffirmed by the United Nations Commission on Human Rights and the United Nations General Assembly.
The reality is that the prevailing law and practice in far too many countries across the Caribbean, Africa and Asia, does not adequately provide the level of protection required in capital cases. Unless and until states can meet the universally accepted standards, the death penalty should not be enforced. The potential for wrongful conviction and execution of the innocent or those who have not had fair trials, is precisely why international norms require such exacting standards and a heightened level of due process in capital cases. The key question is whether there are significant gaps between the absolute minimum conditions required in all capital cases and the law and practice in retentionist countries? If so, the only option is that the death penalty should no longer be enforced.
THE DEATH PENALTY IN ASIA
In many countries in Asia, there are reported concerns that in death penalty cases, the right to a fair trial is impeded by laws which effectively deny due process. Even in countries where due process safeguards exist in principle, the reality is that they are not being applied in practice.
Courts continue to rely on “confessions” extracted through torture as evidence in criminal trials. Laws impose mandatory death sentences for crimes such as drug trafficking, and place the burden of proof on the accused, depriving them of the right to be presumed innocent until and unless proven guilty according to law. Access to a lawyer before, during and after trial is often denied, and in some countries the independence of the judiciary is not assured.
In Japan, where there have already been six executions in 2013, the combination of a lack of effective judicial control over the use of lengthy pre-trial detention; the failure to demand unanimity among jurors before a sentence of death can be imposed and the lack of effective mandatory appeals is of great concern. Japan has a sophisticated and well-resourced legal system, but is yet another example of a country which is failing to implement capital punishment in accordance with universally accepted safeguards.
International attitudes to the death penalty have no doubt evolved with the knowledge that systems of criminal investigations are fraught with the possibility of human error and an over-hasty response to appalling crimes. The impossibility of eliminating error is a major objection to capital punishment. Pending abolition, all countries need to ask themselves whether the purest concepts of due process are routinely achieved in all capital cases. The investigation, prosecution and trial must be conducted with such fairness and propriety that there can be no possibility that a mistake has been made and the wrong person convicted. The evidence from around the world indicates that no system of capital punishment, however sophisticated and resourced, can eliminate miscarriages of justice and the execution of an innocent person.