E/CN.4/1999/52

12 January 1999

COMMISSION ON HUMAN RIGHTS

Fifty-fifth session

Item 17 (a) of the provisional agenda

PROMOTION AND PROTECTION OF HUMAN RIGHTS: STATUS OF THE INTERNATIONAL COVENANTS ON HUMAN RIGHTS

Question of the death penalty

Report of the Secretary-General submitted pursuant to Commission resolution 1998/8

CONTENTS

Paragraphs

I. EXECUTIVE SUMMARY OF MEASURES TAKEN BY THE UNITED NATIONS AND THE POSITION OF STATES 9 - 16

II. CHANGES IN LAW AND PRACTICE 17 - 24

III. STATUS OF THE DEATH PENALTY AS AT 1 DECEMBER 1998 25

IV. CONCLUSIONS 26 - 27

I. EXECUTIVE SUMMARY OF MEASURES TAKEN BY THE UNITED NATIONS AND THE POSITION OF STATES

9. The question of capital punishment has been considered in United Nations human rights organs and bodies since 1959. As far back as 1971 the General Assembly called on States to progressively restrict the use of the death penalty (resolution 2857 (XXVI)). In 1977, it reaffirmed this appeal in resolution 32/61. The desirability of the abolition of capital punishment has also been strongly recommended by the United Nations since 1977. Article 6 of the International Covenant on Civil and Political Rights affirms the right to life. While not prohibiting capital punishment as such, this article provides that a sentence of death may be imposed only for the most serious crimes in accordance with the law. The Human Rights Committee has observed that article 6 strongly suggests that the abolition of the death penalty is desirable. The entry into force in 1989 of the Second Optional Protocol to the Covenant was a step in this direction.

10. It is also significant to note that Security Council resolutions 827 (1993) of 25 May 1993 and 955 (1994) of 8 November 1994 on the establishment of international criminal jurisdictions for the former Yugoslavia and Rwanda, respectively, excluded the death penalty, and established that imprisonment was the sole penalty to be imposed by these tribunals for crimes of genocide and crimes against humanity.

11. At its fifty-third (1997) and fifty-fourth (1998) sessions, the Commission on Human Rights adopted resolutions 1997/12 and 1998/8 requesting the Secretary-General to prepare a yearly supplement to his quinquennial report and to submit it to the Commission. Thus, the issue has become a regular item on the Commission's agenda. In its resolutions the Commission also called upon all States that still maintain the death penalty progressively to restrict the number of offences for which it may be imposed; to establish a moratorium on executions with a view to completely abolishing the death penalty; and to make available to the public information with regard to the imposition of the death penalty.

12. The Sub-Commission on Prevention of Discrimination and Protection of Minorities and its sessional working group on the administration of justice have also considered the evolution of capital punishment. Sub-Commission member Mr. El Hadji Guissé has submitted working papers on this issue (see, for example, document E/CN.4/Sub.2/1998/WG.1/CRP.3). The Special Rapporteur on extrajudicial, summary or arbitrary executions had included in his reports each year information on State practices regarding the implementation of the Safeguards guaranteeing the protection of the rights of those facing the death penalty.

13. The Human Rights Committee has examined and continues to examine under the Optional Protocol to the Covenant a large number of cases involving capital punishment. The Committee has adopted many final decisions ("views") on the merits of such complaints and in more than half of the cases has found violations of the provisions of the Covenant, especially paragraph 3 of article 14 of the Covenant which lays down minimum guarantees of defence. In some cases, the Committee has linked the violation of article 14 with a violation of the right to life (art. 6), and adopted what is by now a standard formula:

"The Committee is of the opinion that the imposition of a sentence of death upon the conclusion of a trial in which the provisions of the Covenant have not been respected, and which could no longer be remedied by appeal, constitutes a violation of article 6 of the Covenant ... . Since the final sentence of death was passed without having met the requirements for a fair trial set out in article 14, it must be concluded that the right protected by article 6 of the Covenant has been violated". /Communication No. 282/1988 Leaford Smith v. Jamaica, views adopted on 31 March 1988, Official Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/40), vol. II, annex XII.E, para. 10.6./

14. The High Commissioner for Human Rights continues to engage in a constructive dialogue with Governments in order to campaign for the limitation and elimination of the use of the death penalty. She has made several statements and declarations and sent messages concerning the imposition of the death penalty in a number of States (for the text of these messages, see the OHCHR website at www.unhchr.ch).

15. The information received shows two approaches towards the abolition of the death penalty. While the European Union fully supports the fight against violent crime, in its opinion, there is ample evidence that executions do not provide for less violent societies. Rather, the death penalty and its application tend further to brutalize and escalate social conflicts, thus diminishing the essential respect for human rights and dignity. At the Second Summit of Heads of State and Government of the Council of Europe (Strasbourg, October 1997), the heads of Government including those of all EU member States called for the universal abolition of the death penalty. New States members of the Council of Europe have also committed themselves to a moratorium on the death penalty and to ratify Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Finally, the EU decided, as an integral part of its human rights policy, to strengthen its international activities aimed at the

abolition of the death penalty.

16. The Governments of Antigua and Barbuda, China and Trinidad and Tobago noted that Commission resolution 1998/8 reflected the views of the abolitionist States and that the voting record showed that there was no international consensus on the abolition of the death penalty.

They pointed out that at the substantive session of the Economic and Social Council in July 1998, 52 delegations disassociated themselves from the resolution on that subject. In their opinion, the Commission on Human Rights in compiling the yearly updates duplicated the research and the reports prepared by the Centre for International Crime Prevention. The yearly updates therefore were unnecessary. These Governments also believed that the issue of the death penalty should remain within the framework of the Commission on Crime Prevention and Criminal Justice.

II. CHANGES IN LAW AND PRACTICE

17. Changes in law and practice concerning the death penalty may cover a number of different issues. Changes in law may include new legislation abolishing or reinstating the death penalty, or restricting or expanding its scope, as well as ratifications of international instruments that provide for abolition of the death penalty. Changes in practice may cover non-legislative measures with a significant new approach regarding the use of the death penalty; for example, countries may, while retaining the death penalty, announce a moratorium on its application, or after a de facto moratorium, resume executions. Such changes might also include measures to commute death sentences.

18. Based on the information received, the following changes in law and practice can be reported.

A. Countries which have abolished the death penalty since 1 January 1998

19. According to information received, Estonia abolished the death penalty in 1998. The Governments of Azerbaijan and Nepal reported that the death penalty was abolished in their States in 1988 and the criminal legislation was revised accordingly.

B. Countries restricting the scope of the death penalty or limiting its use since 1 January 1998

20. According to information received, in June 1998 the parliament of Tajikistan passed a new Criminal Code which would reduce the number of articles carrying a possible death sentence from 44 to 15. Under the new Criminal Code a death sentence could be commuted to 25 years' imprisonment. The new Criminal Code came into force on 1 September 1998.

C. Countries having ratified international instruments since 1 September 1997 that provide for the abolition of the death penalty

21. There are three international instruments in force which commit States parties to abolishing the death penalty. They are: the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at abolition of the death penalty; Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty; and the Protocol to the American Convention on Human Rights to Abolish the Death Penalty. Protocol No. 6 concerns abolition of the death penalty in peacetime. The two other protocols provide for the total abolition of the death penalty but allow States wishing to do so to retain the death penalty in wartime.

22. During the reporting period two States acceded to the Second Optional Protocol, namely Costa Rica on 5 June 1998 and Nepal on 4 March 1998. Four States ratified Protocol No. 6 to the European Convention, that is the Republic of Moldova on 12 September 1997, Croatia on 5 November 1997, Estonia on 17 April 1998 and Greece on 8 September 1998.

D. Countries establishing a moratorium on executions with a view to completely abolishing the death penalty

23. The Government of Armenia stated that in conformity with a presidential moratorium, no executions had taken place in Armenia since 1991 and no executions will be carried out until the adoption of the new Criminal Code abolishing the death penalty, at the end of 1998.

According to information received, in September 1996, the President of Latvia announced to the Parliamentary Assembly of the Council of Europe that he would grant all requests for clemency submitted to him. In June 1998, following the retention by the Saeima of the death penalty in the new Criminal Code, the President stated that he would keep the moratorium on executions in place.

E. Countries reintroducing the use of the death penalty, extending its scope or resuming executions since 1 January 1998

24. It was reported by Amnesty International that on 2 June 1998 in the Central Prison of Addis Ababa the first execution was carried out since the overthrow of the Dergue (military government) in 1991.

III. STATUS OF THE DEATH PENALTY WORLDWIDE AS AT 1 DECEMBER 1998

25. The latest quinquennial report and the 1998 yearly supplement include a number of tables showing the status of the death penalty worldwide. This section reproduces some of these tables and updates them to include developments at the end of 1997 and in 1998, as well as making changes where additional information has become available.

Table 1. List of retentionist countries a/

Afghanistan

Algeria

Antigua and Barbuda

Armenia

BahamasJamaica

Japan

Jordan

Kazakhstan

Kenya Bahrain

Bangladesh

Barbados

Belarus

BelizeKuwait

Kyrgyzstan

Lao People's Democratic Republic

Latvia

Lebanon Benin

Botswana

Bulgaria

Burkina Faso

BurundiLesotho

Liberia

Libyan Arab Jamahiriya

Lithuania

Malawi Cameroon

Chad

China

Comoros

Cuba Malaysia

Mauritania

Mongolia

Morocco

MyanmarDemocratic People's Republic of Korea

Democratic Republic of the Congo

Dominica

Egypt

Equatorial Guinea Nigeria

Oman

Pakistan

Qatar

Republic of Korea Eritrea

Ethiopia

Gabon

Ghana

Guatemala Russian Federation

Rwanda

Saint Kitts and Nevis

Saint Lucia

Saint Vincent and the Grenadines Guyana

India

Indonesia

Iran (Islamic Republic of)

Iraq Saudi Arabia

Sierra Leone

Somalia

Sudan

Swaziland Syrian Arab Republic

Tajikistan

Thailand

Trinidad and Tobago

Tunisia United States of America

Uzbeskistan

Viet Nam

Yemen

YugoslaviaTurkmenistan

Uganda

Ukraine

United Arab Emirates

United Republic of Tanzania Zambia

Zimbabwe

Total: 87 countries.

(a/ The countries or territories listed retain the death penalty for ordinary crimes, and in most cases are known to have carried out executions during the past 10 years.)

Table 2. List of countries that are totally abolitionist

Country or territory / Date of abol./ Date ab.for ord.crimes/Date of last exe. Andorra 1990 .. 1943

Angola 1992 .. ..

Australia 1985 1984 1967

Austria 1968 1950 1950

Azerbaijan 1998 .. ..

Belgium 1996 .. 1950

Bolivia .. .. 1974

Cambodia 1989 .. ..

Cape Verde 1981 .. 1835

Colombia 1910 .. 1909

Costa Rica 1877 .. ..

Croatia 1990 .. ..

Czech Republic 1990 .. 1989

Denmark 1978 1930 1950

Dominican Republic 1966 .. ..

Ecuador 1906 .. ..

Estonia 1998 .. ..

Finland 1972 1949 1946

France 1981 .. 1977

Georgia 1997 .. 1995

Germany 1949/1987 a/ .. 1949

Greece 1997 .. ..

Guinea Bissau 1993 .. 1986

Haiti 1987 .. 1972

Holy See 1969 .. ..

Honduras 1956 .. 1940

Hungary 1990 .. 1988

Iceland 1928 .. 1830

Ireland 1990 .. 1954

Italy 1994 1947 1947

Kiribati .. .. *

Liechtenstein 1987 .. 1785

Luxembourg 1979 .. 1949

Marshall Islands .. .. *

Mauritius 1995 .. 1987

Micronesia .. .. *

(Federated

States of)

Monaco 1962 .. 1847

Mozambique 1990 .. 1986

Namibia 1990 .. 1988

Nepal 1998 .. ..

Netherlands 1983 1870 1952

New Zealand 1989 1961 1957

Nicaragua 1979 .. 1930

Norway 1979 1905 1948

Palau .. .. ..

Panama .. .. 1903

Paraguay 1992 .. 1917

Poland 1997 .. 1988

Portugal 1976 1867 1847

Republic of Moldova 1995 .. ..

Romania 1990 .. 1989

San Marino 1865 1848 1768

Sao Tome and Principe 1990 .. *

Slovakia 1990 .. 1989

Slovenia 1991 .. 1959

Solomon Islands .. 1966 *

South Africa 1995 .. 1989

Spain 1995 1978 1975

Sweden 1973 1921 1910

Switzerland 1992 1937 1945

The former 1991 .. 1988

Yugoslav

Republic of

Macedonia

Tuvalu .. .. *

Uruguay 1907 .. ..

Vanuatu .. .. *

Venezuela 1863 .. ..

Total: 65 countries

Two dots (..) indicate that data are not available.

An asterisk (*) indicates that there have been no executions since the country gained its independence.

a/ The death penalty was abolished in the Federal Republic of Germany in 1949 and in the German Democratic Republic in 1987. The date of the last execution in the German Democratic Republic is not known.

Table 3. List of countries that are abolitionist for ordinary crimes only

Country Date of ab.for ord.crimes /Date of last execution

Argentina 1984 ..

Bolivia 1991 ..

Bosnia and Herzegovina 1997 ..

Brazil 1979 1855

Canada 1976 1962

Cyprus 1983 1962

El Salvador 1983 1973

Fiji 1979 1964

Israel 1954 1962

Malta 1971 1943

Table 4. List of countries that can be considered abolitionist de facto a/

Country Date of last known execution

Albania ..

Bermuda 1977

Bhutan 1964

Brunei Darussalam 1957

Central African Republic 1981

Chile 1985

Congo 1982

Côte d'Ivoire ..

Djibouti *

Gambia ..

Grenada 1978

Guinea 1983

Madagascar 1958

Maldives 1952

Mali 1980

Nauru *

Niger 1976

Papua New Guinea 1950

Philippines 1976

Samoa *

Senegal 1967

Sri Lanka 1976

Suriname 1984

Togo ..

Tonga 1982

Turkey 1984

Total: 26 countries

Two dots (..) indicate that data are not available.

An asterisk (*) indicates that there have been no executions since the country gained its independence.

a/ Countries that retain the death penalty for ordinary crimes but have not executed anyone during the last 10 years or more. It should be pointed out that in some of these countries death sentences continue to be imposed, and not all of the countries listed have a policy of regularly commuting death sentences.

Table 5. Summary of the status of the death penalty worldwide

Number of retentionist countries 87

Number of totally abolitionist countries 65

Number of countries abolitionist for ordinary crimes only 16

Number of countries that can be considered abolitionist 26

IV. CONCLUSIONS

26. The last (fifth) quinquennial report affirmed the trend towards an increased pace of abolition, noted in the fourth quinquennial report, and concluded that "an unprecedented number of countries have abolished or suspended the use of the death penalty" (para. 94) and that from 1989 through 1995 "the pace of change may be seen to have been quite remarkable" (para. 96).

27. The information in the present report supports the conclusion that the trend towards abolition continues, with an increase in the figure of totally abolitionist countries from 61 to 65. There is also an increase in the number of countries ratifying international instruments that provide for the abolition of the death penalty. During the reporting period, no country classified as abolitionist (whether for all or only ordinary crimes) made legal changes to reintroduce the death penalty. One retentionist country was reclassified as abolitionist de facto.