One of the greatest challenges facing practitioners in retentionist states involves the lack of sufficient due process safeguards. Due process is a broad concept, but in general refers to those procedural protections that are necessary to ensure that the accused is subject to a fair and impartial trial. The concept of equality of arms is also essential to this definition: the defense must be granted autonomy, confidentiality, the power to challenge the government’s case, and adequate resources that are at least equal to those provided to the government to investigate the charges and prepare a defense.
Many retentionist states fail to provide even the most basic procedural protections essential to a fair trial. Some of the most essential due process safeguards are set forth in Article 14 of the ICCPR, which provides that the accused is entitled to:
- Equality before the courts and tribunals;
- A fair and public hearing by a competent, independent and impartial tribunal;
- Presumption of innocence;
- To be informed promptly and in a language the defendant understands of the nature and cause of the charge against him;
- To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his choice;
- To be tried without undue delay;
- To be present during the trial;
- To defend himself in person or through legal assistance of his own choosing, and to have legal assistance assigned to him without payment « in any case where the interests of justice so require; »
- To confront the witnesses against him and obtain the attendance of witnesses on his behalf;
- To review of the conviction and sentence by a higher tribunal;
- To compensation for wrongful convictions; and
- Not to be prosecuted twice for the same crime.
Article 6 of the ICCPR provides that the death penalty may only be imposed where these standards are observed. The Human Rights Committee has accordingly held that when a state violates an individual’s due process rights under the ICCPR, it may not carry out the execution.1
Article 14 of the ICCPR guarantees the right to a « fair and public hearing by a competent, independent, and impartial tribunal, » and the right to be presumed innocent.2 In its Implementing Comments, the drafters stressed that Article 14 must be read as broadly as needed to root out the threat to fairness that arises in a particular proceeding.3 And finally, Article 26 specifically guarantees that « [a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law. »4
The Human Rights Committee has held that « [t]he right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception. »5 Moreover, in Richards v. Jamaica, the Committee found a violation of article 14 in a capital case involving extensive pretrial publicity, and ruled that Jamaica could not lawfully carry out the execution.6
Although some of the provisions noted above parallel the individual rights protected under national constitutions, they may be interpreted differently under international law. For example, the Human Rights Committee has reviewed several cases involving the right to counsel in capital cases. In Reid v. Jamaica, for example, the Committee held that « in cases involving capital punishment, in particular, legal aid should enable counsel to prepare his client’s defence in circumstances that can ensure justice. This does include provision for adequate remuneration for legal aid. »7
Johnson v. Jamaica, para. 8.9, No. 588/1994, U.N. Human Rights Committee, 1996.
McLawrence v. Jamaica, para. 5.13, No. 702/1996, U.N. Human Rights Committee, 1997.
OC-16/99, para. 135, Inter-Amer. Ct. of Human Rights, Oct.1, 1999.
Ocalan v. Turkey, Application No. 46221/99, European Ct. of Human Rights, 2003.
Reid v. Jamaica, para. 11.5, No. 250/1987, U.N. Human Rights Committee, 1994.
Richards v. Jamaica, para. 7.2, No. 535/1993, U.N. Human Rights Committee, 1997.
Leah Ambler, The People Decide: The Effect of the Introduction of the Quasi-Jury System (Saiban-In Seido) on the Death Penalty in Japan, 6 NW. U. J. Intl. Human Rights 1, 2007.
Margaret A. Burnham, Indigenous Constitutionalism and the Death Penalty: The Case of the Commonwealth Caribbean, 3 Intl. J. Const. L. 582, 2005.
Joan Fitzpatrick & Alice Miller, International Standards on the Death Penalty: Shifting Discourse, 19 Brook. J. Intl. L. 273, 1993.
Viktor Mayer-Schonberger, Crossing the River of No Return: International Restrictions on the Death Penalty and the Execution of Charles Coleman, 43 Okla. L. Rev. 677, 1990.
Greta Proctor, Reevaluating Capital Punishment: The Fallacy of a Foolproof System, The Focus on Reform, and the International Factor, 42 Gonz. L. Rev. 211, 2007.
Vincent-Joel Proulx, If the Hat Fits, Wear It, If the Turban Fits, Run for Your Life: Reflections on the Indefinite Detention and Targeted Killing of Suspected Terrorists, 56 Hastings L.J. 801, 2005.
John Quigley, Exclusion of Death-Scrupled Jurors and International Due Process, 2 Ohio St. J. Crim. L. 261, 2004.
Last updated on October 31, 2011.
1 Johnson v. Jamaica, No. 588/1994, H.R. Comm. para. 8.9 (1996) (finding delay of 51 months between conviction and dismissal of appeal to be violation of ICCPR art. 14, para. 3(c) and 5, and reiterating that imposition of a death sentence is prohibited where the provisions of the ICCPR have not been observed). Reid v. Jamaica, No. 250/1987, H.R. Comm. para. 11.5 (« [T]he imposition of a sentence of death upon the conclusion of a trial in which the provisions of the Covenant have not been respected constitutes [. . .] a violation of article 6 of the Covenant. »). McLawrence v. Jamaica, No. 702/1996, H.R. Comm. para. 5.13 (1997) (same); OC-16/99, para. 135, Inter-Am. Ct. H.R., Oct.1, 1999 (« [s]tates that still have the death penalty must, without exception, exercise the most rigorous control for observance of judicial guarantees in these cases »); Report of the Human Rights Committee, GAOR, 45th Session, Supplement No. 40, Vol. II, 1990, Annex IX, J, para. 12.2, reprinted in 11 Hum. Rts. L.J. 321, 1990 (« in capital punishment cases, the duty of States parties to observe rigorously all the guarantees for a fair trial. . . is even more imperative »). G.A. Res. 35/172, Dec. 15, 1980 (member states must « review their legal rules and practices so as to guarantee the most careful legal procedures and the greatest possible safeguards for the accused in capital cases »). William Schabas, The Abolition of the Death Penalty in International Law 108-09, 1997. Ocalan v. Turkey, Application no. 46221/99, Eur. Ct. H.R., 2003, Â§IIA, available at http://hudoc.echr.coe.int.
2 ICCPR, art. 14(1),(2), 999 U.N.T.S. 171, Dec. 16, 1966.
3 ICCPR, General Comment on Implementation, Para. 5.
4 ICCPR, art. 26, 999 U.N.T.S. 171, Dec. 16, 1966.
5 Gonzales del Rio v. Peru, para. 5.2, No. 263/1987, Human Rights Committee, 1992.
6 Richards v. Jamaica, para. 7.2, No. 535/1993, Human Rights Committee, 1997.
7 Reid v. Jamaica, para. 13, No. 250/1987, Human Rights Committee, 1994.