Side Event: No place for the death penalty in the drug policy toolbox (or in criminal law generally).

Organized by the Government of Switzerland, the Office of the High Commissioner for Human Rights, the European Union and the Council of Europe.

Jan Malinowski, Executive Secretary, Pompidou Group, Council of Europe: Welcome to this side event on the question of the death penalty. The universality of human rights means we are concerned with the issue on an international level. I would like to read out some sentences from the booklet you have on the death penalty. The secretary general makes clear the death penalty is barbaric. The death penalty is a human rights violation. I finish the introduction and we will see a short video.

Video from the EU titled ‘Say no the death penalty.’

Adriano Martins, Division of Human Rights, European External Action Service, EU: I will be elaborating the political stance of the EU. I will elaborate on how the trend of abolition of the death penalty is going around the world.

Sabrina Wittman-Puri, Lawyer, European Court of Human Rights: My presentation will focus on the legal side of the death penalty, article 2 and 3 of the convention. Bottom line is EU member states cannot extradite individuals who are at risk of the death penalty.

Zaved Mahmood, Drug Policy and Human Rights, OHCHR, UN: It is important at this time when 33 states who continue to use the death penalty, we have noticed over the last few most executions have been for drug offences. I would like to change the title of the program: there should be no place for the death penalty in the 21st century. Yesterday at the commission under item 5 I made a statement commending the INCB on its position on the death penalty. In 2014 they made the decision the death penalty in regard to intentional human rights frameworks. I would like to mention use of the death penalty is in violation of international human rights law. We need to be vocal on this issue, especially when directly collaborating with countries. I would like to briefly mention one issue, we need to have constitutional prohibition of the death penalty. I do not want to name any country but a council of Europe country wanted to bring back the death penalty. I urge the EU to look at their country’s constitution to check of the death penalty is included. We can see backward trends. In this regard, Europe needs to lead.

Adriano Martins, Division of Human Rights, European External Action Service, EU: The EU is against the death penalty in all circumstances. We consider it an unacceptable way of punishing. This comes from the universal declaration of human rights and embedded in human dignity. For a matter of principle, it will be enough for us to be against the death penalty. IT is not an issue of legality and this distinction is important because some countries deviate the discussion to a legal issue There is no legal system that should ever have the death penalty. We also oppose the death penalty because it is inhumane and cruel. A number of personalities mentioned and developed on that. I quote Nelson Mandela ‘death penalty is a barbaric act and a reflection of animal instinct still in human beings’ I would suggest animals are better because they kill for eating not for punishing. It is also irreversible. Thee is no justice system that is immune to mistakes. I give the example of the most sophisticated system: justice in the united states, 160 people have been condemned to death who later on the system considered it to be a mistake. 160 people have been wrongly convicted. In the US this is a reason the system is falling apart. I would like to quote a death row inmate exonerated ‘you can release an innocent man from prison but you cannot release him from the grave.’ This is an interesting explanation of someone on the death row. 160 cases over 40 years makes 4 per year. Each case is extreme and a case that can play with our emotions. If it is not enough of a reason we could mention the deterrent effect. It is proved that it does not have a deterrent effect. In Canada it was abolished in 1976 and criminal rates have since reduced. All these reasons contributed to raise awareness of more and more people in more and more countries. The case of Africa, the first country to abolish was Cape Verde, today 41 countries out of 54 countries have abolished the death penalty over 27 years. Two thirds of countries in the World have abolished the death penalty so far. In Europe, Belarus is the only country still using the death penalty. We are convinced they will abolish it soon. So, I mentioned the trends in the World. It is being eradicated in the World, not a question of if, but when?

Sabrina Wittman-Puri, Lawyer, European Court of Human Rights: The EU have been pioneers in the death penalty abolition. I will explain the convention system and the legal basis. Article 1 and 2 of the convention, the most fundamental human rights on the convention. In 2002 protocol number 2 abolished the death penalty in all European commission states. You can make a request not be to extradited to a country with the death penalty under the EU commission. The death row phenomenon is the trauma experienced while being there for many years. This has enlarged the state’s responsibility under the convention, they have to watch about extraditing people to country’s with the death penalty. It is impossible for 47 member states to extradite someone to a country still practicing the death penalty unless assurances can be made. There is a case of an individual in the UK. An alleged terrorist turned to the EU court of human rights because in Jordon who can use torture for suspected criminals. The UK and Jordon made an arrangement not to use torture in cases of extradition.This was a winning situation for both of the countries and he was aquitted. How do these cases get to the Straberg court? Rule 39 request for interim measures. Applicants make very big use of this. The court has found preventable deaths in prison constitute a violation. A case in 2002, a women was convicted for petty crime in the UK. She died in hospital after illhealth was ignored. In this case because the prison had failed to monitor her health they had violated the rights of the woman under article 3. France seeks to move out prisoners who are terminally ill. The court has found cases where prisoners were refused compassionate leave for terminal illness.

Zaved Mahmood, Drug Policy and Human Rights, OHCHR, UN:It is important to consider international cooperation regarding drug offences. We have seen a case recently in Indonesia, two executions of Australian nationals. We need judicial cooperation in circumstances like this, not just issues of extradition. Consular services, one EU country abolished the death penalty foreign officer in their office which presents a serious issue. I am not optimistic the death penalty will be abolished. The situation in the World right now is not very optimistic. One Prime minister mentioned wanting to bring back the death penalty. We need to create a counter narrative. After Brexit, I was shocked that it happened. We need to be cautious about that. I had a meeting about mobilising against the death penalty. We need to create a counter narrative by the victims of crimes. No victims of terrorism call for the death penalty in Europe. We need to capture those messages. After 6 years there is no death penalty in Pakistan, but after bringing it back for terrorism it was then brought back for all crimes.

Jan Malinowski, Executive Secretary, Pompidou Group, Council of Europe: We have a few minutes for comments or questions?

Australia: How difficult is it to get the UN to sanction countries violating human rights?

Question: from the floor: I counted together the countries who still have the death penalty: about half of the world’s population. We have to focus on those who still have it, which is half of the World. Where are the tools to bring those countries?

Adriano Martins, Division of Human Rights, European External Action Service, EU: Which tools and sanctions can we use? As I mentioned over the last 50 years the progress is incredible and this was done without any sanctions, just by bringing the debates to the agenda and through the work of civil society. I am convinced that this is the way forward. I do not thin that punishing countries will make progress. I think all countries will realise that it is the right decision. No one says criminals should not be punished. We are discussing through our human rights dialogue, and we feel that the message is being heard and we feel they are listening more and more. The progress is there, even in the case of Iran where the issue quite serious, we saw they raised the threshold for drug offences. So the progress is there we must continue what we are doing though diplomacy by making the dangers of the death penalty clear.

Sabrina Wittman-Puri, Lawyer, European Court of Human Rights:  The question about the UN I will leave to my college. Wher are the tools? I believe in giving countries incentives, potentially financial incentives. The court does its part by stopping expulsions. Bilateral treaties are also the ways to go forward.

Zaved Mahmood, Drug Policy and Human Rights, OHCHR, UN:The UN is not giving sanctions because the mechanisms we have, we do not have those sanctions available to us in the security council. Regarding positive signs, I agree with the news about Iran, they have changed mandatory death penalties. How are we going to protect the people on death row in the country: 5000 people need legal assistance. A lot needs to be done and member states must consider how they can support the processes to save people on death row.

 

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