Side event: The Death Penalty for Drug Offences: Implementing Fair Trial Safeguards

Organized by the Governments of Australia, Austria, Canada, France, Mexico, New Zealand and the United Kingdom, the European Union, Harm Reduction International, and the Office of the High Commissioner for Human Rights

 

Zaved Mahmood – Office of the High Commissioner for Human Rights

Under International Law, the use of the death penalty for drug offences is totally prohibited. The Human Rights Committee has made this issue very clearly in the General Comment on the right to life (art. 36). So even if we had fair trials, I would still say that the death penalty for durg offences is unlawful, as it doesn’t meet the most serious crime threshold for the death penalty under international law.

Today we are also looking at fair trial issues, which is the topic of the excellent recent report of Harm Reduction International (HRI). I would like to congratulate Giada Girelly and HRI in general for their work on the death penalty and drug policy.

Emil Stojankovsi – Deputy Head of Mission Australian Permanent Mission to the UN in Viena

Between 2008 and 2018 more than 4,000 people were executed for drug offences. There are thousands of persons who are facing the death penalty for a drug offence, some of whom are going through a very unfair process. Many of them might be executed -all of them on the name of the war on drugs.

Evidence cannot be clearer that the death penalty doesn’t work. It does not deter the manufacture, trafficking, and consumption of drugs. It does nothing but rob people of the possibility to rehabilitate.

Illicit drugs pose major challenges to societies, especially among the most vulnerable populations. But killing people is not the answer. Year after year the UNODC World Drug Report shows that the production of drugs has either stayed the same, or increased. Yet countries that support the death penalty for drug offences refuse to acknowledge this reality.

People who are most likely to be executed for drug offences are amongst the most vulnerable members of our societies.

Now, several Australians have been executed, or are under a death penalty process, because of drug offences. They deserved a different chance, an opportunity to rehabilitate. Australia wont cooperate or extradiute people on procedures that carry the death penalty. We will make sure that we continue to fight this unfair policy.

Zaved Mahmood -OHCHR

I would like to call your attention to the fact that the president of the INCB made clear that the use of the death penalty for drug offences is contrary to international law, and to the international drug control conventions.

We hope that we’ll see that articulation from the new director of UNODC in the future.

Naomi Burke-Shyne – HRI

HRI works on the death penalty for drug offences because it represents a clear clash between human rights and drug control. It epytomizes the contradictions between drug control and human rights.

Now, universally, all countries belief in fair trials, all countries want their criminal justice system to serve the purpose for which it isdesigned -even if you support the death penalty for drug offences. That is why we chose this topic for this year’s report.

2019 represents a negative trend in the number of executions for drug offences, as the amounts have increased from last year. See the following chat:

The downward trend in the prior years was due to the reforms in certain aprticular domestic countries -in particular in Iran. We need to see why there has been an upwards change his year.

Key findings on the death penalty for 2019:

  • 35 countries retain this punishment.
  • Only 4 countries have conducted confirmed executions for drug offences: China, Singapore, . We suspect that more executions have taken place, for instance in Vietnam  -but we only report on confirmed executions. It is likely that the number of executions and death sentences that we are reporting are under-estimated.
  • Over 3000 people are on death row for drug offences. Many of them can spend years in a death row limbo.

Let me highlight three aspects of the right to a fair trial.

1. The right to effective counsel at all stages

We see that the right to have access to legal advice is normally infringed, especially in pre-trial stage. There is also a very clear trend in infringing this right for foreign nationals, who tend to be a disproportionate share of all those facing the death penalt for drug offences.

2. The right to the presumption of innocence

In a good number of countries, this presumption is clipped. In countries such as Malaysia, Pakistan, or Singapore, this presumptions is reserved, and the burden so that if you are found in possession of drugs you are both presumed to own them and presumed of trafficking. So the burden is on you to prove that you are innocent.

3. The right to seek pardon

After a death sentence is handed down, many lawyers have told us that their clients have serious difficulties to exercise their right to an appeal, and to seek a clemency petitions. For instance, in Indonesia only Indonesians have the possibility of seeking a pardon. That is very worrying considering that many initial decisions get reversed in appeal stage.

Conclusions

Unfair trials contribute significantly to a person being sentenced to death for drug offences. As we normally do, we urge all retention states to impose a moratorium on the application of the death penalty, and to consider abolsihing the death penalty alltogether. When it comes to CND, we urge it to adopt a resolution that acknowledges that the death penalt for drug offences is unlawful, and that it is incompatbile with the international drug control conventions.

To our allies, to the UNODC who has spoken out against the death penatly for durg offences, to abolitionist countries, I urge you to make sure that your mechanisms for international cooperation, aid and assistance for drug control are not used to apply the death penalty for drug offences.

Zaved Mahmood – OHCHR

Let’s move to questions for Eric Paulsen, from the ASEAN Intergovernmental Commission on Human Rights. I’d like to ask you about Malaysia. There was hope that Malaysia would put into place a legislative reform that would abolish the death penalty for drug offences, but we are concerned that this is not likely.

Eric Paulsen – ASEAN Intergnverment Commision on Human Rights

I represent Malaysia in the ASEAN Intergovernmental Commission on Human Rights. I speak as an activist in Malaysia.

In 2018 there was a change of government. One of the good things that came out of the new government was a new willingness to discuss the death penalty -the previous government, which had been basically in power for decades, had never wanted to re-assess the place of the death penalty in Malaysia’s law books.

So we were discussing openly for the first time that the death penalty might be abolished.

In fact, the Government announced that it would abolish the death penalty. However, the implementation of this policy announcement was challenged, as the opposition was against it, and it didn’t gather public opinion support.  To make this worse, about the time of the reforms there was a very high profile case of a rape and murder of a baby, which was taken up by the media as an example that abolishing the death penalty would be against the rights of victims.

The current position of the government is to look into 33 offences for which there is the mandatory drug penalty in Malaysia. When it comes to drug offences, there was a reform in 2017 that would allow for a life imprisonment sentence to be imposed instead of the death penalty, which means persons are elligible for durg offences

In my experience as a lawyer, access to laywers for persons facing teh death penalty in Malaysia is extremely limtied. Hopefully during the trial you would have a lawyer, but not at the moment of detention. Another problem is that most detainees cannot afford a good lawyer. Once the trial starts, as mentioend above it falls on teh detainee to prove that it did not possess the drugs, or that it didn’t intend to traffick. So you need a very good lawyer for that.

Zaved Mahmood – OHCHR

The right to consular assistance is a developing human rights standard, imposing even stricter obligations on abolitionist countries. What is the European Union position on States’ obligations to provide consular assistance to their own nationals risking the death penalty abroad? And which practical measures is the EU undertaking to ensure states provide consular assistance in these cases?

Adriano Martins – European External Action Serivce

The position of the EU is that the death penalty is unacceptable in all circumstances. We consider it inhuman, cruel, and completely lacking in deterrence.

We know that 7 millions of EU citizens are at any moment travelling abroad, so we care that there is no death penalty in the countries they visit. Also, we believe that we share humanity with all citizens from all places across the globe, and that their human rights should be respected..

In fact, there are not that many countries who retain the death penalty in practice, thanks to the work of civil society and to the UN. And it is exactly these countries the ones who have very flawed judicial systems -which means you can get killed by the state arbitrarilly. We are not against punishing crime, we are against killing people.

With that I come to your question. Consular protection is a competence of the Member States -it’s not an EU level competence. However, there is an EU Directive that regulates the issue within the EU, in order to give uniformity and minimum level of guarantee of protection to all citizens, and also to regulate what happens if a citizen of a member state is in a 3rd coutnry where there is no embassy of an EU member state of its own country. In that case, that person is entitled to protecton by another Member State, exactly with the same rights as if it was a member state of that country.

The role of the EU delegations on this matter is a role of coordination, and of sharing and promoting best practice. We also have a role in coordinating Member States in times of crisis.

Zaved Mahmood -OHCHR

I have a question for Leigh Toomey, from the UN Working Group on Arbitrary Detention. In November 2019 the UN Working Group on Arbitrary Detention has adopted an important Opinion on the case of Mark Swidan, an American citizen on death row for drug trafficking in China. The Opinion raised important issues related to fair trial and proportionality of punishment (among others) and found the incarceration of Mr. Swidan to be a form of arbitrary detention. Which conclusions can be drawn from this and other sources on the death penalty for drug offences under the profile of the prohibition of arbitrary deprivation of liberty, both in general and with specific regard to fair trial standards?

Leigh Toomey -UN Working Group on Arbitrary Detention (WGAD)

This is Opinion 17/2019, it was adopted in November 2019. It hasn’t been published yet -it’s going through internal editing. This is the case of a person who was detained in 2012 under very serious offences related to trafficking and manufacturing drugs. There was a delay of 63 months between detention and trial. He was first appointed with a lawyer that didn’t visit him at all, and didn’t keep any correspondence with the detainee. The second lawyer appointed didn’t speak any English at all.

The WGAD reached the conclusion that there was no legal base for the detention, as there was no warrant for detention, and he was not informed of the charges in a timely manner. This means that the detention was arbitrary. Furthermore, his access to legal counsel and to consular assistance did not meet minimum standards. There were also suggestions that Mr Swidan had been subjected to significant coertion to provide a confession. So many of the fair trial violations that HRI has reported in this year’s Death Penalty Overview were found in this case.

It is fairly rare case in which the WGAD has spoken on the death penalty for drug offences. In its Opinion, the WGAD made clear that the death penalty in this case did not meet standards of proportionality.

Zaved Mahmood -OHCHR

Another question for Leigh Toomey. Do you think that placing someone on the death row for drug offences constitutes arbitrary detention?

Leigh Toomey -WGAD

Any death penalty sentence following a trial that didn’t meet fair trial standards, would be equal to an arbitrary deprivation of life. Furthermore, we also found that if the legislation under which detention took place did not meet international standards (for instance, the Human Rights’ Committee standards set in the General Comment number 6), the detentions is also arbitrary.

Alicia Buenrostro – Ambassador of Mexico to the International Organisations in Vienna

Until some years ago, in Mexico we had the death penalty in our legislation -it was thanks to the work of civil society that this changed. Since then, the government of Mexico has acknowledged that this is a serious violation of human rights, especially for drug offences -and in particualr when it applies to populations such as women, crop growers, etc.

Until last year, we had 3 Mexican brothers in the death row in Malaysia, as they had been in the death row for 7 years. Thanks to the consular assistance provided by Mexico, they were released and returned to Malaysia last year. I am ending my time here in Viena and I’m becoming the ambassador of Mexico to Malaysia precisely -so I’m going to bring this learning experience there.

We share the view that the death penalty is in all cases an unfair and inhuman punishment -and also that it lacks all deterrent impact. We must come to terms with the fact that we are in a new reality. On the one hand, more and more countires are starting to legalise the use of cannabis for medical or other purposes, and on the other hand some other countries are applying extremely harsh punishments of drug offences. In our view, it is obvious that the cost of the current strategy is disproportionate, and we urge all countries to direct appropriate resources to ensure that death penalty is not applied in unfair judicial circumstances.

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