Advisory Opinion on Restrict10ns to the Death Penalty IACtHR 1983

Transcription

1 Advisory Opinion on Restrict10ns to the Death Penalty IACtHR r What was the issue-- Whether a country can impose the death penalty on crimes not previously covered, in light of Art1cle 4(4) of the Amer1can Convent1on? D1spute between Comm1ssion and Guatemala. Guatemala says th1s is essentially a contentious matter, not appropriate for an advisory opinion. Commission says 1t is a classic matter and if this 1S contentious, then everything p See d1st1nct1on made in paragraph 32 of interpretation, will be. Para. 38, onp.300. Are adv1sory opinions binding? No, in theory, but of course they are cited and rel1ed upon in practice. See, for instance, c1te at bottom of 301. Also in the Move op1n1on at 11 para. 7 [used as an authoritative precedent even though the US hasn't rat1fied the Amerlcan convention!] Hold1ng? Advisory 0p1nion will be issued. Para. 39, p Any lim1ts on th1s power? None are 1dentified.

2 , r A26 Sunday, October 9, 1994 The Honolulu Advertiser Panel backs election bid by Peru's first lady LIMA, Peru - An Organization of American States panel ruled that Peru should allow first lady Susana Higuchi to run for president, possibly against her husband, a newspaper reported yesterday. The OAS' human rights commission ruled that the government should allow Higuchi to appeal a law that bans the president's immediate family members from seeking national office. Congress passed the so-called "Susana Law in July, contributing to a first family feud involving HiguchI and her husband, President Alberto Fujimori. Higuchi, a civil engineer, moved out of the presidential palace in September and said she would challenge her husband for his job. She appealed to the OAS commission, saying the law discriminated against her just because she is married to the president. - Adverti8e1" news services

3 Death Penalty -- U.N. Human Rights Committee Decisions Two contrasting decisions were rendered recently by the Human Rights Committee, the body that oversees States parties' implementation of the International Covenant on Civil and Political Rights. In both cases the Committee was asked to find Canada in violation of its obligations under the Covenant for having extradited someone to the United States for capital crimes without seeking assurances from the U.S. that the individual would not be executed. In Kindler, the Committee did not find a violation (distinguishing the European Court of Human Rights decision in Soering), but in Ng, decided several months later, it did (finding that the manner of execution would constitute cruel, inhuman and degrading punishment). Kindler v. Canada, No. 470/1991, reported at 14 Human Rights LJ. 307 (1993). Summarized by Beth Andrus, member, National Steering Committee, A/USA Legal Support Network On July 30, 1993, the U.N. Human Rights Committee ("Committee") determined that the International Covenant on Civil and Political Rights does not necessarily require an abolitionist state to refuse to extradite a person to a retentionist state if doing so would place that person in jeopardy of being sentenced to death. Joseph Kindler, a citizen of the United States, had been convicted of first degree murder in Pennsylvania in The jury recommended that Kindler be sentenced to death, a recommendation that was binding on the sentencing court. In 1984, before he was sentenced, Kindler escaped to Canada. He was arrested in Canada the following year. Shortly thereafter, the United States requested extradition. Canada ordered that Kindler be extradited and refused to request assurances from the United States that the death penalty would not be imposed. Canada stated that it reserved the right to seek such assurances only in "exceptional circumstances," such as where a person would "face certain or foreseeable violations of the Covenant." The Canadian Minister of Justice, and the reviewing Canadian courts, found no such circumstances in this case. The Human Rights Committee stated that "[i]f a State party extradites a person within its jurisdiction in circumstances such that as a result there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant." It went on to find, however, that extradition to the United States, in this case, did not put Kindler at such a risk. First, it explained, Article 6(1) of the Covenant, which guarantees the right to life, does not prohibit imposition of the death penalty. Under Article 6(2), State parties to the Covenant must limit the death penalty to the most serious crimes, such as premeditated murder. Because Kindler was convicted of premeditated murder, the United States could sentence him to death without being in violation of the Covenant. As a result, neither Canada's extradition of Kindler to the United States, nor its refusal to seek assurances that the death penalty would not be imposed, constituted a violation of Article 6 of the Covenant. Second, the Committee stated, Article 7 of the Covenant (prohibiting cruel, inhuman or degrading punishment) must be read in light of Article 6. Capital punishment, when limited to the most serious of crimes, is not a per se violation of Article 7. The Committee stated that prolonged periods of detention under a severe custodial 17

4 AIUSA Legal Support Network Newsletter consonant with the principles set forth in the American Declaration. " We argued that Mr. Andrews suffered under the "death row phenomenon" of prolonged suffering awaiting execution, as first found by the European Court of Human Rights in Soering v. United Kingdom, 11 E.H.R.R. 439 (1989). The government's response attempted to distinguish the Soering decision both on the facts and the law. It argued first that Soering is limited to the particular facts, where the accused's age and mental health played roles in the decision, and that the decision turned on the language of the European Convention on Human Rights prohibiting "degrading treatment," a clause which finds no counterpart in the American Declaration. The government also argued that "the petition essentially complains that Mr. Andrews received too much due process. " Our response to the government cites to the growing international authority recognizing the death row phenomenon and refusing to carry out executions after prolonged delays, no matter what the source of the delay may be. As the high court of India stated on this issue a decade ago, [w]e think that the cause of the delay is immaterial when the sentence is death. Be the cause for the delay, the time necessary for appeal and consideration of reprieve or some other cause for which the accused himself may be responsible, it would not alter the dehumanizing character of the delay. 9 9yatheeswaran v. State of Tamil Nadu, 2 S.C.R. 348, 353 (1983). We also argue that, after a prima facie case of discriminatory treatment is shown, the government has the burden of proving that racial prejudice did not influence the jury in Mr. Andrews' trial. We hope that this case takes an important step beyond the Commission's disappointing decision in Celestine v. United States,1O the only case other than Roach and Pinkerton II which has addressed the application of the death penalty in the United States. In Celestine, the Commission followed the lead set by the United States Supreme Court in McClesky v. Kemp, 107 S. Ct (1987), by holding that statistical data are not enough, in and of themselves, to prove administration of the death penalty in a racially discriminatory manner. The Commission noted in Celestine that statistical studies were the "sole proof" of intent to discriminate, and that the petitioner "does not present sufficient evidence that Celestine's sentence resulted from racial discrimination." We are confident that Andrews can meet and surpass that burden. B. Gary Graham v. United States. Case No The second case involves Gary IOCase 10,031, Inter-Am. C.H.R. res. 23/89, OEA/Ser.L/V/II.76, doc. 44 (1989). llcase 9647, Inter-Am. C.H.R. 147, OEA/Ser.LN/II.71, doc. 9, rev. 1 (1987). 12NOTE: As this newsletter goes to press, the highest criminal appeals court in Texas has just handed down a significant decision in Gary Graham's case. On April 20, the Texas Court of Criminal Appeals, ruling in Mr. Graham's case, held that prisoners under sentence of death in Texas who have late claims of innocence are entitled to petition the state courts for a retrial. Previously, Texas law required that motions for a new trial based on newly discovered evidence must be made 20

5 Graham, a Texas death row inmate who is still alive today, and who we hope will be saved by the combination of domestic and international litigation on his behalf. Mr. Graham, an African-American, was convicted in 1981, at age seventeen, of felony murder for events which transpired in a grocery store parking lot in Harris County, Texas. Mr. Graham's case has received immense international attention, as it raises serious questions of actual innocence which cannot be raised under current Texas law, in large measure due to earlier limitations placed on the right to federal habeas corpus review by the United States Supreme Court in its decision in Herrera v. Collins, 113 S.Ct. 853 (1993) (holding that federal habeas corpus is not an appropriate remedy by which to raise questions of actual innocence). We filed an emergency petition in April of 1993, days before Graham's scheduled execution, arguing that the inability of Mr. Graham to raise a claim of actual innocence due to limitations of domestic law denied his rights to life, fair trial and due process of law guaranteed under Articles I, XVIII and XXVI of the American Declaration. In addition, the petition argued that the execution of a juvenile (Graham was 17 at the time of conviction and sentence) would violate Article II of the Declaration, as determined in the Roach and Pinkerton case. There, the Commission found that, because the age of majority varied widely among the various states of the United States, the execution of juveniles violated the Declaration's Article I and II provisions guaranteeing the rights to life and equality. Finally, the emergency petition argued denial of the right to representation by a competent attorney, in that Mr. Graham had within 30 days of sentence. However, the ruling set a high standard for proving any claim of innocence. been represented by appointed counsel under a Texas system which has come under severe criticism from outside studies. This issue presents a dramatic difference between the Declaration and the American Convention on Human Rights, which the U.S. has not ratified. The Convention extensively protects the right to counsel, while the provisions of the Declaration make no explicit mention of the right to counsel. We therefore invoked the provisions of Declaration Articles XVIII and XXVI, the rights to fair trial and due process. Because the right to counsel in the United States, even in capital cases, ends with the first appeal of right, individuals such as Mr. Graham are often represented by volunteer attorneys who frequently do not enter the litigation until the last minute. In oral arguments before the Commission in September of 1993, we asked that it take precautionary measures under Article 29 of its regulations, which are to be invoked only to prevent arbitrary and illegal action in a country subject to the Commission's jurisdiction. We were aware of only one other case, in fact, where the Commission has taken such measures against the United States, the case involving involuntary repatriation of Haitians by the U.S. government, Case No. 10,675, now pending. We also presented two witnesses. The first was Ashanti Chimurenga, the lawyer from Amnesty International who had first asked for assistance in the case, who testified to the Commission about the history and status of the domestic litigation. The second was the Rev. Jew Don Boney, head of a support group for Mr. Graham from Austin, Texas, who testified about the factual issues which had been raised by the discovery of new witnesses and evidence in the case. A significant new legal allegation suggested that the failure of the government to afford Mr. Graham an evidentiary hearing on the issue of his innocence also violated the International Covenant on Civil and Political 21

6 AIUSA Legal Support Network Newsletter Rights. The U.S. entered no reservations to Article 2.3(a), which guarantees the right to an effective remedy for violation of rights, or to Article 14.6, which gives a right to compensation following reversal or pardon "on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice." The recognition of a right to compensation assumes, a fortiori, the existence of a meaningful right to present the very newly discovered evidence which gives right to the claim for compensation. On October 29, 1993, the Commission issued precautionary measures against the United States. It declined our invitation to send a delegation as a special mission, pursuant to Article 28 of its regulations, to observe the proceedings before the Texas Board of Pardons and Paroles. It did, however, formally resolve to: 1. Call upon the United States to take the necessary measures to ensure that Mr. Graham is afforded a hearing before the Board of Pardons and Paroles in Texas; 2. Request that the Governor of Texas and the United States Government ensure that the sentence of death not be carried out in relation to Mr. Gary Graham for humanitarian reasons and to avoid irreparable damage; 3. Note that these measures are without prejudice to the final decision in this case. 13 Students in the International Human Rights Law Clinic also sought to keep international attention on the case by writing letters seeking formal intervention both by the 13Precautionary Measures Taken by the Inter-American Commission in Case No (United States at its 84th period of Sessions), Oct. 29, U.N. Secretary General, who has intervened in capital cases in the U. S. in the past, and by the Special Rapporteur on Summary or Arbitrary Executions, who also tracks and responds to emergency requests in some cases. To date, we have received no response from either person. Further action on the case in the Inter-American system awaits an answer from the United States government or from the Texas courts. Summary of United Commission on Human Rights -- 50th session (1994) The views expressed in chis article do not neccssarily represent those of Amnesty InrmIationaJ. R The United Nations _ Commission on Human Rights is the -- most visible policymaking body of the U. N. focusing principally on human rights. The Commission is comprised of 53 member governments, which meet for six weeks each year from late January through mid-march. The governments are represented by delegations of varying size. For example, Barbados had one representative. France and the United States had delegations with over 20 members. All-in-all, there were just over 900 government representatives accredited to attend the Commission, including not only the member states, but also the many governments which participated as observers. At this year's session there was an even larger number -- about of representatives from 150 nongovernmental organizations (including Amnesty International) participating in the Commission as lobbyists, but also with a limited right to speak during public sessions and 22