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Extrajudicial, summary or arbitrary executions Report of the Special Rapporteur, Philip Alston Transparency and the Imposition of the Death Penalty

          
          UNIItL )
          NATIONS
          Economic and Social Distr.
          Council
          GENERAL
          E/CN.4/2006/5 3/Add. 3
          24 March 2006
          Original: ENGLISH
          COMMISSION ON HUMAN RIGHTS
          Sixty-second session
          Item 11(b) of the provisional agenda
          CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTIONS OF
          DISAPPEARANCES AND SUMMARY EXECUTIONS
          Extrajudicial, summary or arbitrary executions
          Report of the Special Rapporteur, Philip Alston* **
          TRANSPARENCY AND THE IMPOSITION OF THE DEATH PENALTY
          * The summary of this
          report is being circulated in all offficial languages. The report itself is
          contained in the annex to the summary and is being circulated as received in the language of
          submission only.
          ** The present report was submitted late in order to reflect the most up-to-date information.
          C
          GE.06-12057 (E) 070406
        
          
          E/CN.4/2006/53/Add. 3
          page 2
          Sununary
          OEe present report of the Special Rapporteur on extrajudicial, summary or arbitrary
          executions analyses a critical area of non-compliance with legal safeguards designed to protect
          the right to life. It builds upon the proposition that [ cIountries that have maintained the death
          penalty are not prohibited by international law from making that choice, but they have a clear
          obligation to disclose the details of their application of the penalty” (E/CN.4/2005/7, para. 59).
          OEe report analyses the legal basis of that transparency obligation and examines case studies that
          illustrate the major problems that exist in this area.
          Transparency is among the fundamental due process safeguards that prevent the
          arbitrary deprivation of life. As the Universal Declaration of Human Rights and the
          International Covenant on Civil and Political Rights state, everyone has the right for criminal
          charges against him or her to be adjudicated in view of the public. OEe present report looks in
          detail at article 14, paragraph 1 of the Covenant, which narrowly limits the scope for secrecy at
          trial, and provides a powerful transparency requirement thereaifier. Secrecy throughout the
          post-conviction process is also limited by State obligations to ensure due process rights and to
          respect the right to freedom from cruel, inhuman or degrading treatment or punishment.
          Two key conclusions result from this analysis. First, the public is unable to make an
          informed evaluation as to the death penalty in the absence of key pieces of information. In
          particular, any meaningful public debate must take place in the light of detailed disclosure by the
          State of information relating to: (a) the number of persons sentenced to death; (b) the number of
          executions actually carried out; (c) the number of death sentences reversed or commuted on
          appeal; (d) the number of instances in which clemency has been granted; (e) the number of
          persons remaining under sentence of death; and (f) each of the above broken down according to
          the oLence for which the condemned person was convicted. Notwithstanding the critical role of
          this information in any informed decision-making process, many States choose secrecy over
          transparency, but still claim that capital punishment is retained in part because it attracts
          widespread public support.
          Secondly, condemned persons, their families and their lawyers should be provided with
          timely and reliable information on the procedures and timing of appeals, clemency petitions, and
          executions. Experience demonstrates that to do otherwise is highly likely to lead to violations of
          due process rights and to inhuman and degrading treatment.
          OEe case studies demonstrate that non-compliance with these transparency obligations is
          of considerable practical relevance. Although the death penalty is not prohibited by international
          law, its use is potentially inconsistent with respect for the right to life when its administration is
          cloaked in secrecy.
        
          
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          Annex
          TRANSPARENCY AND THE IMPOSITION OF THE DEATH PENALTY:
          REPORT OF THE SPECIAL RAPPORTEUR ON EXTRAJUDICIAL
          SUMMARY OR ARBITRARY EXECUTIONS, PHILIP ALSTON
          CONTENTS
          Paragraphs Page
          I. INTRODUCTION 1 -6 4
          II. THE OBLIGATION TO MAKE PUBLIC INFORMATION
          ON THE USE OF THE DEATH PENALTY 7- 25 5
          A. Legal framework of public transparency obligations 7 - 13 5
          B. Case studies on secrecy and its impact on public
          oversight and debate 14- 21 7
          C. Case studies on the use of national security” as a basis
          for withholding statistics on death sentences and
          executions 22 - 25 9
          III. THE OBLIGATION TO PROVIDE POST-CONVICTION
          TRANSPARENCY FOR CONVICTS AND
          THEIR FAMILIES 26- 47 10
          A. Legal framework 26 - 27 10
          B. Case studies on how secret executions undermine due
          process safeguards and lead to the inhuman or
          degrading treatment or punishment of prisoners
          and their families 28 - 37 11
          C. Evaluating the privacy rationale for secret executions 38 - 47 13
          IV. CONCLUSION 48 15
        
          
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          I. INTRODUCTION
          1. In the previous report of the Special Rapporteur on extrajudicial, summary or arbitrary
          executions to the Commission on Human Rights at its sixty-ffirst session, the Special Rapporteur
          noted that there is a widespread lack of compliance with the obligation to administer the death
          penalty in a transparent manner:
          secrecy prevents any informed public debate about capital punishment within the
          relevant society ... Countries that have maintained the death penalty are not prohibited
          by international law from making that choice, but they have a clear obligation to disclose
          the details of their application of the penalty. For a Government to insist on a principled
          defence of the death penalty but to refuse to divulge to its own population the extent to
          which, and the reasons for which, it is being applied is unacceptable. OEe Commission
          should, as a matter of priority, insist that every country that uses capital punishment
          undertake full and accurate reporting of all instances thereof, and should publish a
          consolidated report prepared on at least an annual basis”.'
          2. OEe present follow-up report explores that problem in greater detail, discussing the legal
          framework underpinning transparency obligations and providing case studies that may clarify the
          issues. Information on actual practices undermining transparency is required to assess both the
          dimensions of the problem and the range of reform options. A preliminary observation is that
          countries do not fall neatly into transparent” and OEpaque” categories. While there are countries
          in which the entire process of capital punishment from trial to execution is cloaked in secrecy,
          more oifien some aspects are secret while others are public. For example, in Japan the public is
          provided no information regarding individual executions, but detailed aggregate statistics are
          provided. In contrast, in China, at least some executions are widely publicized, but all aggregate
          information is held in secrecy. OEis diversity of legal and institutional obstacles to transparency
          demonstrates that there is no single path to transparency.
          3. It should be noted that one consequence of the lack of transparency in the administration
          of capital punishment is that reports like this draw on a poor factual base. Today, it would be
          impossible to survey current practices in a comprehensive manner; for that reason, the Special
          Rapporteur chose to focus on representative incidents and practices. OEe Special Rapporteur
          drew on information he had received from various sources. Notes verbales were sent
          on 24 August 2005 to those States which seemed to be most pertinent to the inquiry with a
          request for their views. Of those, Belarus, China, Democratic People's Republic of Korea,
          Egypt, India, Saudi Arabia, Singapore, and Viet Nam responded. OEe Special Rapporteur
          appreciates the cooperation these Governments have extended and the cases studies in the
          present report build on information received by the Special Rapporteur, combined with
          responses by the Governments concerned to a preliminary statement of the current situation. OEe
          Special Rapporteur regrets that the Governments of Afghanistan, the Islamic Republic of Iran,
          Japan, and the Syrian Arab Republic did not respond. OEe Special Rapporteur is very grateful to
          the secretariat of the Offce of the United Nations High Commissioner for Human Rights for its
          assistance in obtaining material for this report and to Katrina Gustafson and William Abresch for
          superb research and analysis.
        
          
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          4. The case studies that follow will analyse some of the reasons given for non-disclosure of
          information on the death penalty, but it is worthwhile to ffirst highlight one key point: the failure
          to comply with transparency obligations lacks any basis related to crime control or the traditional
          purposes of punishment. 2 It is, for example, widely believed that the death penalty is a necessary
          deterrent. Putting aside the empirical debate on whether capital punishment serves as a
          deterrent, is it plausible that secrecy could enhance such a deterrent eLect? It could be argued
          that prospective criminals would, lacking information, assume the worst. However, even if we
          were to impute this species of fear of uncertainty to criminals, the facts are that secrecy is not
          actually utilized by Governments in a way that would exaggerate the use of the death penalty.
          Instead, secrecy seems to be universally relied on so as to downplay the actual numbers of death
          sentences and executions that take place; thus, secrecy would tend to undermine any deterrence
          eLect of capital punishment.
          5. Secrecy is also incompatible with a retributive rationale for the death penalty. The
          general public and the families of victims alike are provided with a sense of retribution by
          punishments that are known not by punishments that are secret. Indeed, any retributive eLect
          that might result from the knowledge that the criminal has been put to death will be reduced as
          secrecy reduces knowledge of the death sentence and execution.
          6. That secret executions and confidential statistics in no way advance crime control and the
          traditional purposes of punishment should itself raise serious questions about these practices.
          II. THE OBLIGATION TO MAKE PUBLIC INFORMATION
          ON THE USE OF THE DEATH PENALTY
          A. Legal framework of public transparency obligations
          7. Transparency is fundamental to the administration ofjustice; indeed, in the succinct
          statement of the right to due process included in the Universal Declaration of Human Rights, the
          requirement of a public hearing follows only that of a fair hearing. 3 The prominence of the
          requirement is no accident: transparency is the surest safeguard of fairness. Why? Over time
          punishment imposed by Governments has come to replace private acts of retribution. This has
          rationalized the disposition of justice, yet it has also introduced the possibility of more
          systematic arbitrariness. The extraordinary power conferred on the State - to take a person's life
          using a ffiring squad, hanging, lethal injection, or some other means of killing - poses a dangerous
          risk of abuse. OEis power may be safely held in check only by public oversight of public
          punishment. It is a commonplace that due process serves to protect defendants. However, due
          process is also the mechanism through which society ensures that the punishments inflicted in its
          name are just and fair. As the Human Rights Committee has observed with respect to the
          International Covenant on Civil and Political Rights, transparency is a duty upon the State that
          is not dependent on any request, by the interested party”. 4
          8. The transparency safeguard for the due process of law is guaranteed by article 14,
          paragraph 1 of the International Covenant on Civil and Political Rights. 5 That provision lays
          down the general rule that everyone shall be entitled to a public hearing. It then clariffies this
          general rule with a limitation clause in two parts. OEe ffirst part of the limitation clause provides
          that the public may be excluded for one of several reasons: the general interest of a democratic
          society in morals, public order, and national security, the privacy interests of the parties, and the
        
          
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          interests ofjustice. These are thresholds not triggers: that a trial implicates a national security
          interest does not automatically justify a wholly secret trial; instead, the courts may exclude the
          public from all or part of a trial” as required by the particular rationale by which publicity
          would imperil national security in the case at hand.
          9. OEe second part of the limitation clause of article 14, paragraph 1, sharply limits the
          scope of the ffirst part, specifying that secrecy may never extend beyond the hearing itself OEny
          judgement rendered in a criminal case or in a suit at law shall be made public”. To this
          requirement there is only the narrowest of exceptions (for a few family law matters). No
          limitation whatsoever is permitted for interests of public order, national security, or justice. The
          reason for this nearly absolute transparency obligation is not, of course, that the draifiers and
          States parties lost sight of these legitimate interests between the penultimate and last clauses of
          article 14, paragraph 1; rather, the rule is absolute because it is never the case that a democratic
          society has an interest in concealing from the public even this ffinal trace of the judicial process.
          10. In its resolution 1989/64 intended to ensure the implementation of the safeguards
          guaranteeing protection of the rights of those facing the death penalty, the Economic and Social
          Council urged Member States to publish, for each category of oLence for which the death
          penalty is authorized, and if possible on an annual basis, information about the use of the death
          penalty, including the number of persons sentenced to death, the number of executions actually
          carried out, the number of persons under sentence of death, the number of death sentences
          reversed or commuted on appeal and the number of instances in which clemency has been
          granted, and to include information on the extent to which the safeguards referred to above are
          incorporated in national law”. 6 It is impossible to oversee compliance with the human rights law
          on capital punishment without this information.
          11. Even during a state of emergency, derogation from transparency rights is never permitted
          in death penalty cases. It might be noted that the permissible scope of derogation from due
          process rights is always tightly circumscribed. While article 14, paragraph 1 is not listed among
          the so-called non-derogable rights” (art. 4, para. 2), measures taken in derogation must always
          be limited to the extent strictly required by the exigencies of the situation” (art. 4, para. 1).
          Moreover, derogations from due process may never go so far as to eviscerate the rule of law,
          because to permit such derogation would be to defeat the very purpose of the article 4 derogation
          regime: to prohibit states of exception subject solely to executive discretion by accommodating
          states of emergency subject to the rule of law. 7 It is not necessary, however, to speculate here on
          whether any species of emergency might strictly require derogation from the transparency
          requirements of article 14, paragraph 1. With respect to transparency and the death penalty, it is
          suffcient to quote the Human Rights Committee's cogent analysis: OEe provisions of the
          Covenant relating to procedural safeguards may never be made subject to measures that would
          circumvent the protection of non-derogable rights ... . OEus, for example, as article 6 of the
          Covenant is non-derogable in its entirety, any trial leading to the imposition of the death penalty
          during a state of emergency must conform to the provisions of the Covenant, including all the
          requirements of articles 14 and 15. 8
        
          
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          12. The purpose underpinning article 14, paragraph 1 explains why publicity must be more
          than formal. In order for every organ of government and every member of the public to have at
          least the opportunity to consider whether punishment is being imposed in a fair and
          non-discriminatory manner, the administration of justice must be transparent. It defeats the
          purpose of the publicity element of due process for judgements to be made public” by
          ffiling them away in courthouses where they can, in theory, be paged through by citizens.
          Obscurity can be as harmful to due process as secrecy. Indeed, some of the questions that must
          be asked - that citizens must be able to ask - about the application of the death penalty cannot be
          answered without a comprehensive view of the decisions and the sentences that have been made
          throughout the country. OEe kind of informed public debate about capital punishment that is
          contemplated by human rights law is undermined if Governments choose not to inform the
          public. It is for this reason that a full and accurate reporting of all executions should be
          published, and a consolidated version prepared on at least an annual basis.
          13. Neither is the general public alone in having a legitimate interest in comprehensive and
          reliable information on the use of the death penalty. At the national level, it might be noted that
          the human rights law obligation not to impose capital punishment in an arbitrary or
          discriminatory manner does not reside solely in the national executive. Organs in every branch
          of government - including the executive, the judicial and the legislative - and at every level, from
          the national to the local, will incur international legal responsibility on the State insofar as its
          acts lead to arbitrary or discriminatory executions. 9 Without aggregate information on capital
          punishment, it is, for example, impossible for any court to evaluate questions of discrimination.
          At the international level, States OEave pledged themselves to achieve, in cooperation with the
          United Nations, the promotion of universal respect for and observance of human rights and
          fundamental freedoms In recognition of this duty, the Economic and Social Council has,
          for example, requested that the Secretary-General survey Member States at ffive-year intervals on
          their use of capital punishment, including on the oLences for which the death penalty may be
          imposed and on the total number of executions.
          B. Case studies on secrecy and its impact on public oversight and debate
          14. Capital punishment policies and practices are oifienjustiffied with reference to the state of
          public opinion. OEus, the Government of China observed in a reply to the Special Rapporteur
          in 2003 that each country should decide whether to retain or abolish the death sentence on the
          basis of its own actual circumstances and the aspirations of its people” and the role of public
          opinion was also emphasized in a reply to the Special Rapporteur in 2005.11 OEe Government of
          Japan responded to a survey by the Secretary-General that the majority of people in Japan
          recognize the death penalty as a necessary punishment for grievous crimes. Considering the
          number of serious crimes ... it is inevitable to impose the death penalty on oLenders who
          commit such crimes”. 12 In many countries, however, non-compliance with transparency
          obligations means that the public lacks the information necessary to make these determinations.
          15. The public is unable to determine the necessary scope of capital punishment without key
          pieces of information. In particular, public opinion must be informed by annual information on:
          (a) the number of persons sentenced to death; (b) the number of executions actually carried out;
        
          
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          (c) the number of death sentences reversed or commuted on appeal; (d) the number of instances
          in which clemency has been granted; (e) the number of persons remaining under sentence of
          death; and (f) each of the above broken down by the oLence for which the person was convicted.
          Many States, however, choose secrecy over transparency, leaving the public without the requisite
          information.
          16. OEe decision of many States not to respond to the Secretary-General's survey on capital
          punishment is indicative. OEe Economic and Social Council has requested that the
          Secretary-General conduct this survey of Member States at ffive-year intervals since 1973.13 OEe
          response rate has been very low, leading the Council to ask the Secretary-General to draw on all
          available data” in future reports, rather than relying solely on Government responses. 14 OEe
          Secretary-General's most recent report shows that retentionist countries are especially unlikely to
          respond. Of the 62 countries that were retentionist at the time of the survey, 87 per cent did not
          respond at all, and only 4 - Bahrain, Japan, Trinidad and Tobago, and the United States of
          America - reported on the oLences for which the death penalty may be imposed and on the total
          number of executions. 15
          17. In some instances, no reason is given for the lack of transparency. Belarus does not
          publish annual statistics relevant to the death penalty, nor does it provide the names or case
          details of individuals who have already been executed. There has been great inconsistency in
          the information on the death penalty that has been provided by the Government. For example,
          on 5 October 2004, chief of the Belarusian Ministry of the Interior's Department of Corrections
          Vladimir Kovchur reportedly told Interfax that there have been no executions this year, and
          nobody is even on death row”. 16 However, on 19 November 2004, the Belarusian newspaper
          Sovetskaya Belorussiya reported that the Interior Minister, Uladzimir Navumaw, had stated that
          there were then 104 people on death row and that in 2004, 5 people had been sentenced to death
          and executed. 17
          18. In a note verbale to the Special Rapporteur, the Government stated that two persons were
          sentenced to death in 2004; the note verbale did not comment on the size of death row or on the
          number of persons executed. 18
          19. Singapore does not normally publish statistics on death sentences passed or executions
          carried out, and executions are not announced ahead of time and are rarely reported. However,
          the Government occasionally makes information available in response to questions from
          journalists or Parliament. A signifficant level of information on death sentences and executions
          was also released in response to Amnesty International's January 2004 report on the death
          penalty in Singapore (Singapore, the death penalty: a hidden toll of executions). In response to
          the claim by Amnesty International that the Government kept death penalty statistics secret, the
          Government issued a response stating that all trials and appeals are conducted in public, that
          Amnesty International itself has monitored certain trials and that the more newsworthy trials are
          reported in the media. 19 OEe Government response also revealed that as you have requested for
          the ffigures, 19 Singaporeans and foreigners were executed in 2003. Between January and
          September 2004, six persons were executed”. 20 In connection with Amnesty International's
          estimate that 400 people had been executed in Singapore since 1991, the Government did not
          provide a precise ffigure, but the Prisons Department said that this was a fair estimation”. 21
        
          
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          20. A lack of transparency undermines public discourse on death penalty policy, and
          sometimes this may be its purpose. Measures taken by the Government of Singapore suggest
          an attempt to suppress public debate about the death penalty in the country. For example, in
          April 2005, the Government denied a permit to an Amnesty International off cial to speak at a
          conference on the death penalty organized by political opposition leaders and human rights
          activists. The reason for the restriction, as stated by the Government, was that a high degree of
          control over public debate and the media was necessary in order to maintain law and order. In
          another recent example, the Government banned the use of photographs of
          Shanmugam Murugesu, who was executed on 13 May 2005, in all publicity and information
          relating to a concert organized to protest the death penalty. Posters advertising the concert had
          included photographs of Shanmugam Murugesu's face. OEe reason stated for the ban was a
          concern that the concert organizers were glorifying” an ex-convict and executed person.
          21. Informed public debate about capital punishment is possible only with transparency
          regarding its administration. There is an obvious inconsistency when a State invokes public
          opinion on the one hand, while on the other hand deliberately withholding relevant information
          on the use of the death penalty from the public. How can the public be said to favour a practice
          about which it knows next to nothing? Lpublic opinion really is an important consideration for
          a country, then it would seem that the Government should facilitate access to the relevant
          information so as to make this opinion as informed as possible. It is unacceptable for a
          Government to insist on a principled defence of the death penalty but to refuse to divulge to its
          own population the extent to which, and the reasons for which, it is being applied.
          C. Case studies on the use of nationa1 security” as a basis for
          withholding statistics on death sentences and executions
          22. The most frequently cited rationale for not disclosing information on the death penalty is
          that such information is a State secret” that would imperil national security were it made public.
          Thus, for example, in January 2004 the Government of Vietnam declared reports and statistics
          on the use of the death penalty to be State secrets”. 22 Article 1, paragraph 1, of the decision
          states: The list of State top secrets of the People's Court includes: Documents related to the
          trial on national security crimes, reports and statistics on death penalty, clandestine trials that
          should not be published under the law.” In the past, the Government has issued annual statistics
          on death sentences and executions, but this practice has been discontinued. 23 Today, the courts
          do not publish their proceedings, and the Government refuses to disclose any statistical
          information on capital punishment.
          23. It is also on State secret” grounds that the Government of China refuses to disclose
          statistics on death sentences and executions. 24 (Likewise, the Government does not consistently
          publicize death sentences in individual cases.) OEis offcial opacity has opened for debate even
          the basic facts regarding the death penalty in China. In March 2004, Chen Zhonglin, director of
          the law academy at Southwestern University of Politics and Law and a senior national legislative
          delegate, stated that China executes nearly 10,000” people every year. When this was reported
          in the media, Chen Zhonglin clariffied that this number was not an offcial ffigure, but merely an
        
          
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          estimate based upon the work of scholars and other senior legislators. OEe Ministry for Foreign
          Affairs has declined to explain why China did not release statistics on the number of people
          executed each year, 25 and China did not respond to the survey carried out in connection with the
          report of the Secretary-General to the Economic and Social Council on capital punishment and
          implementation of the safeguards guaranteeing protection of those facing the death penalty. 26
          24. India has moved towards greater transparency, but signifficant gaps in information on
          past and present death sentences and executions remain. With respect to the present, since 1995
          the National Crime Records Bureau has published tables listing the total number, but not the
          names or details, of persons executed each year. The situation with respect to pre-1995
          executions is more complex. The Home Ministry had claimed that the 2004 execution of
          Dhananjoy Chatterjee was the ffifty-ffiifih execution in India since independence. However, the
          Indian non-governmental organization (NGO) People's Union for Democratic Rights (PUDR)
          subsequently discovered information indicating that in the 10-year period between 1953 and
          1963, 1,422 people had been executed in India. This information was found in an appendix to
          the thirty-ffiifih Report of the Law Commission of India (1965), which listed the number of
          executions carried out in this period in 16 Indian states. To follow up on this information, PUDR
          ffiled requests under local government right to information acts, seeking details of all persons
          who had been executed since 1947 in both Delhi and Maharashtra. The Maharashtra state
          authorities disclosed the data. In contrast, the Delhi authorities refused. In his response, the
          Deputy Inspector General (Prisons) stated that the information sought would not serve any
          public interest” and that some of the persons who have been executed had been convicted for
          various o f fences having prejudicial effect on the sovereignty and integrity of India and security
          of NCT (National Capital Territory) of Delhi and international relations and could lead to
          incitement of an offence”. 27
          25. OEe national security and public order concerns that underpin State secret classiffications
          of death penalty information lack legal justiffication. As discussed above, article 14, paragraph 1,
          of the Covenant permits secrecy on these grounds only at the trial stage, and no derogation from
          this rule whatsoever is permitted in death penalty cases. This OElack-letter” legal conclusion is
          not hard to understand. Even restrictions on transparency at the trial stage must be justiffied by
          reasons of morals, public order (ordre public) or national security in a democratic society”. 28
          Basic information on the administration of justice should never be considered a threat to public
          order or national security.
          III. THE OBLIGATION TO PROVIDE POST-CONVICTION
          TRANSPARENCY FOR CONVICTS AND THEIR
          FAMILIES
          A. Legal framework
          26. A lack of transparency regarding the post-conviction process and timetable for execution
          implicates two sets of rights. The ffirst is that the failure to provide notice to the accused of the
          timing of his own execution may undermine due process rights. Due process rights and other
          safeguards on the right to life remain even aifier a person has been convicted of a crime and
          sentenced to death. Most notably, the death row prisoner has the right to his conviction and
        
          
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          sentence being reviewed by a higher tribunal” (article 14, paragraph 5, of the Covenant) and the
          right to seek pardon or commutation of the sentence” (article 6, paragraph 4, of the Covenant).
          The uncertainty and seclusion inflicted by opaque processes place due process rights at risk, and
          there have, unfortunately, been cases in which secrecy in the post-conviction process has led to a
          miscarriage ofjustice. In addition, and regardless of the actual due process consequences, to
          conceal from someone the facts of their preordained fate will constitute inhuman or degrading
          treatment or punishment. There are, of course, legitimate interests in security and privacy that
          necessarily limit access to death row and the publicity accorded to some information. However,
          these interests can and must be accommodated without violating rights.
          27. For the prisoner and for his or her family, the other issue is that a lack of transparency in
          what is already a harrowing experience - waiting for one's execution - can result in inhuman or
          degrading treatment or punishment” within the meaning of article 7 of the International
          Covenant on Civil and Political Rights. OEe views of the Human Rights Committee in two cases
          illustrate the scope of this right. In a recent decision that responded to an individual complaint of
          the mother of an executed Belarusian prisoner, the Committee found that OEe complete secrecy
          surrounding the date of execution, and the place of burial and the refusal to hand over the body
          for burial have the eLect of intimidating or punishing families by intentionally leaving them in a
          state of uncertainty and mental distress.” This amounted to inhuman treatment in violation of
          article 7 of the Covenant. 29 In Pratt and Morgan v. Jamaica, the Committee found that a delay
          of approximately 20 hours before communicating a reprieve to the accused just 45 minutes prior
          to his scheduled execution constituted a violation of Article 730 States do not have any interest
          that justiffies keeping persons on death row and their families in the dark regarding their fate.
          B. Case studies on how secret executions undermine due process safeguards
          and lead to the inhuman or degrading treatment or punishment of
          prisoners and their famifes
          28. While convicted persons remain on death row, a number of States withhold from them
          and their family members basic information concerning the post-conviction process.
          29. In an example from the Islamic Republic of Iran, Afshen Razvany and Meryme Sotodeh
          were reportedly arrested on 9 July 2003, sentenced to death shortly aifierwards and executed on
          23 January 2004 without a court order and without prior notice being given to their families. 3 '
          (In response to these allegations, the Government asserted that it had no record of these
          individuals being detained in July 2003.32)
          30. The case of Dong Wei illustrates the risks that post-conviction opacity poses to respect
          for human rights. Dong Wei was a farmer who was sentenced to death on 21 December 2001 for
          killing a man during a ffight outside a dance hall in Yan'an City, Shaanxi Province, China. His
          lawyer appealed against the sentence, claiming that Dong had killed the man in self-defence.
          Shaanxi Province High People's Court reviewed its own decision, rejected the appeal in a closed
          session, and, on 22 April 2002, issued an order for Dong to be executed seven days later.
          Dong's lawyer was not informed of the decision, and only found out on 27 April - just two days
          before the execution was scheduled - because he happened to visit the high court to ask about the
          progress of the appeal. OEe lawyer then travelled to Beijing at his own expense to appeal the
        
          
          E/CN.4/2006/53/Add. 3
          page 12
          case at the Supreme People's Court, but he was refused entry and turned away. On the morning
          of the execution, the lawyer managed to gain access to the Supreme People's Court under false
          pretences and convinced a judge to review the case. OEe judge agreed with the lawyer that
          Dong's case needed further review, and the execution was only stopped when the judge
          contacted the execution ground with a borrowed mobile phone, reportedly just four minutes
          before the execution was scheduled. (Aifier a further review of the case by Shaanxi Province
          High People's Court on the orders of the Supreme People's Court, Dong was executed
          on 5 September 2002.) Transparency would have prevented this near violation of the right to
          life.
          31. In many cases, the due process consequences of opacity in the post-conviction process
          will remain unknown; however, the consequences of the dignity of the individual and his or her
          family are clear.
          32. Refusing to provide convicted persons and family members advance notice of the date
          and time of execution is a clear human rights violation. In the most extreme instances, prisoners
          have learned of their impending executions only moments before dying, and families have been
          informed only later, sometimes by coincidence rather than design. OEese practices are inhuman
          and degrading and undermine the procedural safeguards surrounding the right to life.
          33. In Saudi Arabia, there have been cases in which foreign prisoners were unaware that they
          were under sentence of death. OEis has been due, at least in part, to the failure of the
          Government to provide translators for defendants who did not speak Arabic. In one instance, it
          has been credibly alleged that six Somali nationals spent six years in prison before learning that
          they were under sentence of death. 33 When they spoke to their families by telephone on the
          morning of 4 April 2005, they remained unaware that they were to be executed. Later that day
          they were beheaded.
          34. Incidents in which the family has not been informed have occurred in China. In one case,
          the families of two Nepalese citizens sentenced to death in Tibet had not heard from the
          defendants for four months and read about their death sentences in a Kathmandu newspaper. 34
          (OEe Government of China has informed me that their death sentences were subsequently
          commuted and that regular contact had been maintained with the Nepalese consulate during the
          trial proceedings. 35 ) More generally, the ability of family and lawyers to visit death-row
          prisoners is sometimes very limited, and there are many reports of relatives being denied access
          to condemned prisoners, or of executions being carried out without relatives being informed of
          the failure of ffinal appeals. However, there are encouraging signs of reform. For example, the
          Beijing Municipality High People's Court announced in September 2003 that it was urging all
          intermediate-level courts in the municipality to set aside rooms for condemned prisoners to meet
          for a ffinal time with their family. 36
          35. It is more oifien information about the date and time of execution that is withheld than
          information about the death sentence itself In some cases notice is provided, but only belatedly.
          OEus, in Singapore prisoners and their families are typically given one week's notice, in Egypt
          they are typically provided two to three days' notice, and in Japan it appears that they are
          provided even less time. In other cases, no advance notice has been provided at all. OEe
          execution of Sasan Al-c Kena'n provides an example. He was executed at 4 in the morning
        
          
          E/CN.4/2006/53/Add.3
          page 13
          on 19 February 2003 in Kordestan province, Islamic Republic of han. Later that day, his mother
          arrived at the prison to visit her son and was told to go the judiciary's local offces. Only then
          was she informed that Sasan Al-c Kena'n had been executed earlier that morning. She was told
          not to make a fuss” and to bury him quickly.
          36. As noted above, the unlawful character of such practices has been previously established
          in the case of Belarus. There it has been found that the Government does not provide full
          information to the relatives of executed prisoners about the dates and places of execution and
          burial; does not ensure that relatives of a prisoner under sentence of death are informed of the
          prisoner's place of imprisonment; does not permit regular and private meetings with the prisoner,
          not even to say goodbye if the petition for clemency is rejected; and, does not allow family
          members to collect the executed prisoner's remains or personal eLects. 37 In a 2003 decision, the
          Human Rights Committee found that these practices had put the mother of a condemned prisoner
          in a state of anguish and mental stress amounting to inhuman treatment in violation of article 7 of
          the International Covenant on Civil and Political Rights. 38
          37. There is no justiffication for post-conviction secrecy, and these case studies have
          illustrated how a lack of transparency both undermines due process rights and constitutes
          inhuman and degrading treatment or punishment. Persons sentenced to death, their families, and
          their lawyers should be provided with timely and reliable information on the procedures and
          timing of appeals, clemency petitions, and executions.
          C. Evaluating the privacy rationale for secret executions
          38. Policies and practices of secret execution are oifien concealed and denied. However, the
          secrecy that Japan maintains around its death row and executions is a matter of offcial policy
          that is openly held and the legality of which is expressly defended. OEus, for example, in 2004
          two people were executed in Japan without advance notice being given to their families or
          lawyers. OEe prisoners themselves were informed only a few hours before the executions. And
          the Government has refused to conffirm or deny the execution of any particular person.
          39. The Government of Japan has defended these practices by arguing that executions must
          be kept secret in order to protect the privacy of the prisoner as well as that of his or her family.
          The refusal to disclose the names of executed individuals is justiffied by the stigma of the death
          penalty: their names had already been made public during their trials; the further public
          announcement of their names on the day of execution would be cruel. 39
          40. There is, of course, a point at which individual rights to dignity and privacy do outweigh
          transparency obligations. 40 OEis point has, for example, already been passed when a person is
          executed before the general public. As the Human Rights Committee has observed, carrying out
          executions before the public is a practice that is incompatible with human dignity”. The
          experience of some countries with public executions clearly illustrates the fundamental
          diLerence between revealing the information needed for the public to make informed decisions
          about the death penalty and the use of death as a public spectacle. Indeed, exhibitions of
          bloodletting are not necessarily informative, and information need not be accompanied by
          violent displays.
        
          
          E/CN.4/2006/53/Add. 3
          page 14
          41. In China, the Supreme Court has stated that public parading and other actions that
          humiliate the person being executed are forbidden. This has not, however, stopped all such
          practices. Especially in connection with trials involving drugs, gangs and corruption,
          condemned prisoners have been lined up in front of the court's public gallery to hear their
          sentence, sometimes with photographers and television cameras focused on their faces to capture
          their expression as sentence is passed. Following sentencing, prisoners may be paraded in an
          open truck through the streets to the execution ground, with a placard around their neck bearing
          their name crossed out in red. However, the Government has informed the Special Rapporteur
          that, OEn 24 July 1986 and again on 1 June 1988, the ministries responsible for law, the People's
          Procuratorates, public security and justice jointly issued a circular strictly forbidding the public
          display of condemned persons, and the pertinent authorities have since then treated this issue
          with the utmost gravity. In recent years, the phenomenon has thus been eLectively prohibited”. 4 '
          It had also been credibly alleged that executions are carried out in public stadiums or squares in
          front of large crowds, but this allegation was denied by the Government.
          42. Public executions are also carried out in a number of other countries. In the Democratic
          People's Republic of Korea, there have been many reports of public executions in front of large
          crowds drawn from schools, businesses, and farms that were notiffied in advance. Some
          prisoners have reportedly even been executed in front of their families. 42 In Viet Nam, also,
          many executions are carried out publicly and the general public is encouraged to attend these
          events. And in Saudi Arabia, executions are generally carried out outside crowded mosques
          aifier Friday prayer services.
          43. It is, thus, only superfficially duff cult to reconcile the prohibition on secret executions
          with the prohibition on public executions. On the one hand, it is inhuman treatment to give a
          prisoner only moments to prepare for his fate, and it is inhuman treatment to surprise a mother
          with news of her child's execution. But these practices can be avoided with advance notification
          of the date, time and place of execution, permitting ffinal visits and ffinal personal preparation.
          And the due process rights of persons sentenced to death can be protected so long as such
          notiffications are made public. There is no legitimate interest served, however, by making
          executions public spectacles, and this is itself a most inhuman form of punishment.
          44. OEe limitations on transparency imposed by, for example, Japan go beyond what is
          necessary to protect individual rights to privacy and human dignity and undermine the
          safeguards publicity provides. Some outside access to death row is essential to ensuring the
          rights of death-row prisoners. It is problematic, for instance, that in 2002 the international NGO
          International Federation for Human Rights (FIDH) visited Japan in order to investigate detention
          conditions of death-row inmates and was refused access to inmates, death-row cells, the
          execution chamber or any of the secure area of the detention house grounds. It becomes
          impossible to justify such practices inasmuch as information on death-row prisoners is withheld
          regardless of the prisoner's own appreciation of his or her privacy interests. When members of
          the Human Rights Commission of the Council of Europe visited Japan in early 2001, they were
          not permitted to contact a convict on death row even though the convict had, with the help of his
          wife, given his consent. When death-row inmate Masakatsu Nishikawa requested that a
          photographer be permitted to take a photograph of him that could be displayed at his funeral, his
          request was denied. An Osaka Regional Correction Headquarters offcial said that in
        
          
          E/CN.4/2006/53/Add.3
          page 15
          considering whether to allow such a photo to be taken, they had to consider the manner in
          which it would be distributed as well as the eLect of the photograph on the defendant, his family
          and the bereaved family members of the victims”. 43
          45. This lack of transparency has grave consequences for the adequacy of public oversight.
          The survey carried out in connection with the Secretary-General's 2005 report on capital
          punishment (E/2005/3) requested that Japan explain why it had not abolished the death penalty
          for ordinary crimes. The response of the Government was that the majority of people in Japan
          recognize the death penalty as a necessary punishment for grievous crimes. Considering the
          number of serious crimes ... it is inevitable to impose death penalty to the oLenders who commit
          such crimes”. 44 However, report of the Secretary-General also takes note of the view of the
          Japanese Federation of Bar Associations (JFBA) that one of the main reasons why capital
          punishment has not been abolished in Japan is the extraordinary secrecy surrounding the death
          penalty system and the consequent lack of proper information to discuss abolition. 45 OEus far,
          even parliamentary oversight has been limited. In 2003, two Diet members were allowed to tour
          an execution chamber but this was the ffirst time they had been allowed to do so since 1973.
          JFBA has recently proposed a bill that would: (a) set up parliamentary study panels on the death
          penalty; (b) suspend executions while the study is underway; and (c) require the Government to
          disclose information about the death penalty so the panels can conduct full research.
          46. Two logical limits to the privacy argument against transparency are apparent. OEe ffirst
          such logical limit is that ensuring the right to privacy does not justify the denial of information to
          the very person whose privacy rights are being invoked. OEus, the argument that secrecy
          protects the privacy of death-row prisoners cannot explain or justify a refusal to reveal the timing
          and other details of executions to death-row prisoners themselves or to their families. Indeed,
          privacy protections would, if anything, support the claim that a death-row prisoner and his or her
          family should be fully informed of the prisoner's fate. It undermines rather than promotes
          privacy to forbid families and prisoners the most basic information about the prisoner's own
          death.
          47. The second such logical limit is that respect for privacy cannot oLset transparency
          obligations when the prisoner does not desire his experience on death row or the fact of his
          execution to be private. Privacy”, in this context, is merely a by-product of enforced secrecy.
          Because prisoners are not aware of when they will die, they have no opportunity to make this
          fact public (or alternatively maintain their privacy). Moreover, while on death row they are
          prohibited from contacting the media or politicians and any contact they do have with permitted
          visitors is strictly controlled and monitored. By stripping death-row inmates of control over their
          communications and knowledge of the most crucial aspect of their lives, i.e. the timing of their
          own death, the Japanese system undermines rather than protects the privacy of death-row
          prisoners.
          IV. CONCLUSION
          48. The widespread pattern of non-compliance with transparency obligations that the present
          report has documented is disappointing. It is reassuring, however, that with the will to reform
          the administration of capital punishment, the problems in most countries could be resolved with
          little technical diLiculty. It is hoped that this report will lead to continued constructive dialogue
          on the measures required to ensure full transparency in the administration of the death penalty.
        
          
          E/CN.4/2006/53/Add. 3
          page 16
          Notes
          1 E/CN.4/2005/7, paras. 58-59.
          2 For instance, in a note verbale to the Special Rapporteur, dated 11 October 2005, the
          Government of China stated that the application of the death penalty for crimes of this order has
          salutary deterrent and preventative eLects”.
          OEe Universal Declaration of Human Rights, art. 10: Everyone is entitled in full equality to a
          fair and public hearing by an independent and impartial tribunal, in the determination of his
          rights and obligations and of any criminal charge against him.”
          Van Meurs v. the Netherlands, Human Rights Committee (HRC), communication
          No. 215/1986 (1990), CCPR/C/39/D/215/1986, para. 6.1.
          International Covenant on Civil and Political Rights, art. 14, para. 1: All persons shall be
          equal before the courts and tribunals. In the determination of any criminal charge against him, or
          of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public
          hearing by a competent, independent and impartial tribunal established by law. The press and
          the public may be excluded from all or part of a trial for reasons of morals, public order (ordre
          public) or national security in a democratic society, or when the interest of the private lives of
          the parties so requires, or to the extent strictly necessary in the opinion of the court in special
          circumstances where publicity would prejudice the interests ofjustice; but any judgement
          rendered in a criminal case or in a suit at law shall be made public except where the interest of
          juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the
          guardianship of children.”
          6 ECOSOC resolution 1989/64.
          HRC, general comment No. 29(2001) on derogations during a state of emergency, para. 16;
          see also Inter-American Court Of Human Rights, Advisory Opinion OC-9/87, Judicial
          Guarantees in States of Emergency (arts. 27(2), 25 and 8 American Convention on
          Human Rights) (6 October 1987).
          8 HRC, general comment No. 29 (2001), para. 15.
          HRC, general comment No. 31(2004), para. 4, on the nature of the general legal obligation
          imposed on States parties to the Covenant.
          10 The Universal Declaration of Human Rights, preamble; see also Charter of the
          United Nations, Article 1.
          See E/CN.4/2005/7, para. 58. In a note verbale to the Special Rapporteur,
          dated 11 October 2005, the Government of China explained that the death penalty is applicable
          only to extremely serious crimes” and that one of the factors leading to its use in that context is
          public opinion. [ EIven though attitudes towards capital punishment and understanding of the
          issue have undergone considerable evolution in recent years in the judicial and theoretical flelds,
          as well as in society in general, surveys show that retaining the death penalty for the crimes
        
          
          E/CN.4/2006/53/Add.3
          page 17
          described above still garners widespread approval. Some 90 per cent of the population demand
          application of the death penalty in very serious cases of economic and other non-violent crime ...
          We have also taken note of the fact that the questions of whether and when to abolish capital
          punishment in China are under discussion in academic circles and among the general public.
          The mainstream viewpoint, however, is that the practical conditions for abolition of the death
          penalty do not yet exist in China.”
          12 See Capital punishment and implementation of the safeguards guaranteeing protection of
          those facing the death penalty, Report of the Secretary-General to the Economic and Social
          Council, at pp. 8-9, U.N. Doc. E/2005/3 (9 March 2005).
          13 ECOSOC resolution 1754 (LIV) (16 May 1973).
          14 ECOSOC resolution 1995/57 (28 July 1995), para. 4.
          Calculated on the basis of information contained in E/2005/3 (9 March 2005), para. 6;
          annex I, table 1; E/2005/3/Add.1 (21 June 2005), paras. 3(d), 8.
          16 Interfax News Service, Belarus says nobody on death row now (5 October 2004).
          17 BBC Monitoring Ukraine and Baltics, Belarusian InteriorMinister says five people
          executed in 2004, 20 November 2004 (citing Sovetskaya Belorussiya, Minsk, in
          Russian, 19 November 2004).
          18 According to a note verbale sent by the Government of Belarus to the Special Rapporteur
          on 15 November 2005, 47 persons were sentenced to death in 1998 (6 of whose sentences
          were commuted to deprivation of liberty), 13 persons were sentenced to death in 1999,
          4 persons were sentenced to death in 2000 (2 of whose sentences were commuted to life
          imprisonment), 7 persons were sentenced to death in 2001, 4 persons were sentenced to death
          in 2002, 4 persons were sentenced to death in 2003 (1 of whose sentences was commuted to life
          imprisonment), 2 persons were sentenced to death in 2004. All these persons were convicted of
          murder in aggravating circumstances (1960 Criminal Code, art. 100; 1999 Criminal Code,
          art. 139, para. 2). In the ffirst six months of 2005, the courts did not hand down any death
          sentences.
          19 Response of Singapore Home Ministry to Reuters responding to Reuters News, Amnesty
          challenges Singapore on executions, 19 October 2004 (on ffile with the author).
          20 Response of Singapore Home Ministry to Reuters responding to Reuters News, Amnesty
          challenges Singapore on executions, 19 October 2004 (on ffile with the author).
          21 Reuters News, Singapore says Amnesty execution report absurd” (16 January 2004). OEe
          response of the Government also indicated that, although the Government does not as a rule
          disclose execution statistics, it nonetheless possesses detailed statistical information on the death
          penalty. For example, the Government replied to Amnesty International's claim that most of
          those executed were foreigners by stating that 64 per cent of those executed between 1993
          and 2003 were Singaporeans and in the previous ffive years, 101 Singaporeans and 37 foreigners
        
          
          E/CN.4/2006/53/Add. 3
          page 18
          had been executed. Responding to Amnesty International's claim that the death penalty was
          imposed disproportionately on the poorest, least educated and most vulnerable”, the
          Government stated that, of those executed between 1993 and last year, 44 per cent had primary
          education, 34 per cent had secondary education and 2 per cent had vocational or tertiary
          education. Only 20 per cent were unemployed”. Straits Times, Govt points out 12 grave
          errors' in Amnesty Report (31 January 2004).
          22 Decision of the Prime Minister of Viet Nam on the list of State top secrets of the People's
          Court, No. 0 1/2004/QD-TTg (5 January 2004) (on ffile with the author).
          23 In a note verbale to the Special Rapporteur dated 26 September 2005, the Government of
          Viet Nam noted that, Jii accordance with Article 18 of the Criminal Procedure Law, verdicts
          must be made publicly. Article 229 of the Criminal Procedure Law states that within 15 days
          aifier the verdict is made, ffirst-trial court shall have to provide the defendant, defender, procuracy
          of the same level with the verdict. Viet Nam has so far publicized some of the verdicts by the
          Council of Judges of the People's Supreme Court.” The Government did not address the
          classiffication of death penalty statistics as State secrets” in its note verbale.
          24 In a note verbale to the Special Rapporteur, dated 11 October 2005, the Government of China
          stated that, On the statistical tables kept by the People's Courts, executions and death
          sentences-with-reprieve are counted among all sentences that exceed ffive years of imprisonment.
          OEese ffigures are forwarded in March every year to the President of the Supreme People's Court,
          who reports them to the National People's Congress and arranges for their publication in the
          People's Daily and the Supreme Court journal.”
          25 Agence France-Presse, China defends keeping execution statistics secret, 5 February 2004.
          ( OEe question you raised is not up to me to answer”, Foreign Ministry spokeswoman
          Zhang Qiyue said. But I think with China's improvement and reform and opening, China has
          made great improvements in information transparency”.)
          26 Capital punishment and implementation of the safeguards guaranteeing protection of those
          facing the death penalty, Report of the Secretary-General to the Economic and Social Council,
          E/2005/3 (9 March 2005).
          27 Letter from the Deputy Inspector General (Prisons) Delhi Prisons to Deepika Tandon, PUDR
          (12 May 2005) (on ffile with the author).
          28 The International Covenant on Civil and Political Rights article 14(1) (emphasis added).
          29 Human Rights Committee, Communication No. 886/1999: Belarus, para. 10.2,
          seventy-seventh session, 28 April 2003, CCPRIC/77/D/886/1999. OEe same conclusion was
          reached in a similar case. HRC, Communication No. 887/1999: Belarus, para. 9.2,
          seventy-seventh session, 24 April 2003. Article 7 of the Covenant states that No one shall be
          subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no
          one shall be subjected without his free consent to medical or scientiffic experimentation.”
        
          
          E/CN.4/2006/53/Add.3
          page 19
          30 Pratt and Morgan v. Jamaica, Human Rights Committee, thirty-ffiifih session, para. 13.7,
          CCPR/C/35/D/210/1986, 7 April 1989.
          31 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,
          Addendum - Summary of cases transmitted to Governments and replies received, to the
          Commission on Human Rights at its sixty-ffirst session, E/CN.4/2005/7/Add. 1, para. 227.
          32 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,
          Addendum - Summary of cases transmitted to Governments and replies received, to the
          Commission on Human Rights at its sixty-ffirst session, E/CN.4/2005/7/Add. 1, para. 329.
          Note verbale of the Government of Saudi Arabia to the Special Rapporteur (dated
          30 December 2005): With regard to the Special Rapporteur's reference to Somali nationals,
          according to a letter received from the Director-General of Prisons in the Ministry of the Interior
          there are no Somali prisoners who have been executed or who are facing the death penalty.
          Instead of generalizing and making unfounded and inaccurate accusations, it would have been
          more appropriate for the Special Rapporteur to provide full information on this case in order to
          enable the competent authority to reply to his allegations.”
          Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,
          Addendum - Summary of cases transmitted to Governments and replies received, to the
          Commission on Human Rights at its sixty-ffirst session, E/CN.4/2005/7/Add. 1, para. 82.
          In a note verbale to the Special Rapporteur, dated 11 October 2005, the Government of China
          clariffied that:
          With respect to the case mentioned in the Report of two Nepalese citizens
          sentenced to death in Tibet, in the absence of concrete details of the case, China is unable
          to determine which speciffic case is at issue. According to case information at hand,
          however, China's judicial organs did try a case in 2004 involving the Nepalese citizens
          Ananda, Jiansan and others accused of smuggling arms and munitions, and a case
          involving the Nepalese citizen Rebi and others, accused of smuggling narcotics. In all
          cases, the proceedings of second instance saw the defendants' death sentences reduced to
          death penalties with a two-year reprieve, or to life or ffixed-term imprisonment. During
          trial proceedings, the People's High Court of the Tibetan Autonomous Region made
          regular reports to the Nepalese Consulate in Lhassa, and Nepalese off cials were
          permitted to meet with the Nepalese defendants.”
          36 See also the note verbale from the Government of China to the Special Rapporteur,
          dated 11 October 2005: Jii China, a condemned prisoner may meet with his or her family prior
          to execution, no matter how grave the oLence committed. The rights of the condemned to settle
          personal aLairs and to make family farewells are respected and fully protected. In Beijing for
          example, in 2004, two Intermediate People's Courts approved all applications by condemned
          prisoners for ffinal family visits and made the due arrangements on their behalf In addition, the
          Courts also specially arranged for the presence of a physician at these meetings so as to ensure
        
          
          E/CN.4/2006/53/Add. 3
          page 20
          that no harm befall the prisoners or their family members due to an excess of emotion. These
          actions clearly demonstrate the humanitarian concern of these authorities.”
          The Government addressed some of these issues in a note verbale to the Special Rapporteur
          dated 15 November 2005. OEe Government did not address the publicity of hearings and
          judgements; it did, however, state that decisions to grant clemency to a convicted person under
          sentence of death, to turn down such appeals or to commute the death penalty to life
          imprisonment, deprivation of liberty or another more lenient sentence, shall take the form of a
          presidential decree. The activities of the Pardons Board and presidential decisions on clemency
          are regularly reported in the mass media.
          With respect to post-conviction transparency, the note verbale stated that article 369 of
          the Code of Criminal Procedure provides that, aifier the verdict has been handed down, the
          presiding offcer at the trial or the president of the court shall permit the accused's family and
          close relatives to visit him in custody, at their request. Where such permission is granted, the
          prison administration shall not obstruct meetings between accused persons and their families or
          close relatives. Persons under sentence of death have the same obligations and rights as persons
          detained in a remand prison on the basis of a pretrial restraining order. Once their sentence has
          become enforceable, convicted prisoners under sentence of death shall have, inter alia, the
          following rights: to meet with lawyers and other persons entitled to provide legal assistance, for
          as oifien and as long as necessary; to receive and send letters without restriction; to one short
          meeting with close relatives every month; to receive one parcel or hand-delivered package every
          three months under the procedure established by the prison administration; and, the right to be
          visited by ministers of religion.
          38 HRC, Communication No. 886/1999: Belarus, para. 10.2, seventy-seventh session,
          28 April 2003, CCPRIC/77/D/886/1999.
          Capital punishment and implementation of the safeguards guaranteeing protection of those
          facing the death penalty, Report of the Secretary-General to the Economic and Social Council,
          (E/2005/3), p. 43.
          40 The International Covenant on Civil and Political Rights, articles 7 and 17.
          41 In a note verbale to the Special Rapporteur, dated 11 October 2005, the Government of China
          stated that:
          With respect to the method of execution, China's 1979 Law of Criminal
          Procedure stipulated execution by shooting; this was amended in 1996 to include
          execution by lethal injection. OEe implementation and promotion of this latter method
          has served to make executions more civilized and humanitarian. Meanwhile, Chinese
          law strictly prohibits public executions, and in actual practice, no case of a public
          execution has ever occurred.
          China's Law of Criminal Procedure stipulates that, Txecutions of death
          sentences shall be announced but shall not be held in public'. In the past, individual
        
          
          E/CN.4/2006/53/Add.3
          page 21
          cases of condemned persons being paraded in public have occurred in certain regions of
          the country. On 24 July 1986 and again on 1 June 1988, the ministries responsible for
          law, the People's Procuratorates, public security and justice jointly issued a circular
          strictly forbidding the public display of condemned persons, and the pertinent authorities
          have since then treated this issue with the utmost gravity. In recent years, the
          phenomenon has thus been eLectively prohibited.”
          42 In its note verbale to the Special Rapporteur dated 19 September 2005, the Government of the
          Democratic People's Republic of Korea did not address the particular issues raised by the
          Special Rapporteur but stated in general terms that such phenomena as mentioned in your letter
          do not exist in reality in the Democratic People's Republic of Korea. In spite of this, the hostile
          forces have been ceaselessly fabricating and spreading the plot information as part of their
          pursuit of ill-minded aim to disintegrate and overthrow the state system of the Democratic
          People's Republic of Korea.”
          International Herald Tribune, Only arrest photos available”, 8 June 2005.
          Capital punishment and implementation of the safeguards guaranteeing protection of those
          facing the death penalty, Report of the Secretary-General to the Economic and Social Council,
          E/2005/3, pp. 8-9.
          Capital punishment and implementation of the safeguards guaranteeing protection of those
          facing the death penalty, Report of the Secretary-General to the Economic and Social Council,
          E/2005/3, p. 36.
        

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