10. 10. 2020
The 10th of October marks the 18th World Day Against the Death Penalty. The world day was created by the World Coalition Against the Death Penalty in 2003. Its aim is to advance the global fight against capital punishment, and to raise awareness about its implications. This year, the world day is dedicated to the right to effective legal representation.
One central international treaty is the Second Optional Protocol to the ICCPR, adopted by the UN General Assembly in 1989 and aimed at phasing out the death penalty globally. Regrettably, the Protocol only has 88 states party to it to this date.1 GICJ regrets that not all the states party to the ICCPR understand the rights contained in it as an inherent prohibition of the use of the death penalty, which goes against its key values. By failing to ratify the ICCPR’s Second Optional Protocol, thus refusing to outlaw the death penalty, such parties undermine the value of the ICCPR as a whole.
While we welcome the overall decline in the number of death sentences in the past years, we regret to note that several states have instead increased the number of executions. Among the states carrying out the most death sentences are China, Iran, Saudi Arabia and Iraq. Currently, there are over 26,000 people on death row according to official records, with the actual number assumed to be much higher as several states, not least China, North Korea and Viet Nam have made the executions a state secret and data on them is therefore largely inaccessible.2
In light of this year’s focus on the right to legal counsel, GICJ notes that several states still fail to comply with basic international standards on the right to a fair trial. GICJ is certain that the right to a fair trail is not granted in China, Iran, Saudi Arabia, North Korea, Viet Nam and Iraq.
The right to a fair trial encompasses various rights, such as the right to be presumed innocent until proven guilty, the right to remain silent, the right to have legal aid and to attend one’s trial. The right to legal aid includes funding for a lawyer as well as adequate time to prepare a defense.
The right to legal assistance is effective upon arrest and remains intact until the court hands down its judgement at the last instance, in case the defendant appeals the decision. Legal assistance is necessary not only to prepare an efficient defense, but also to protect the defendant’s physical and psychological well-being during the time they are deprived of their liberty.
The right to be present at one’s trial is also a fundamental principle of international law. It can be limited in certain instances, which leads to trials in absentia. In such a case, additional safeguards must be respected. These are as follows: the defendant must receive notice of the proceedings; there must be an appointment of defense counsel and effective representation; and the defendant must be guaranteed a right to retrial. Firstly, the state must take all necessary measures to inform the defendant of the proceedings against them. If they are nowhere to be found, legal representation must be appointed to them. The representation must be effective, meaning the legal counsel must be able to go to court and defend the accused in their best capacity. Finally, the defendant must have a right to a retrial, in which they can present their case with effective legal representation.
Regrettably, these safeguards are not guaranteed in numerous regions, one disturbing example of which are the courts in Gaza. Since 2010, almost all death penalty trials have been concluded as trials in absentia.3 Most recently, on October 6th 2020, the 8th death sentence has been issued by a Gaza first instance court this year. Such sentences are issued without the minimum guarantees of a fair trial and in violation of various national and international legal provisions. Furthermore, it reaffirms the challenges of achieving justice and equality among all Palestinians and serves as an inadequate solution to the complex issue of criminality in the Gaza Strip, which is complicated by the Israeli blockade and the resulting dire economic and social conditions. In order to address this issue, Hamas must seek real solutions to tackle social injustice and improve the living conditions of its population, as this is often the root cause for criminality. Moreover, the government must realize that its application of the death penalty is neither a deterrent nor a long-term solution and is in flagrant violation of various international legal standards for fair trial and human rights.
On the commemoration of this year’s World Day Against the Death Penalty, GICJ calls on all governments to ratify the Second Optional Protocol to the ICCPR and respect all international rules on the right to a fair trial, especially in cases where the defendant might face the death penalty. We reiterate that nobody should be able to decide on the life or death of another person, especially not in circumstances in which the defendant has no access to effective legal representation and a fair trial, as we see in too many countries today.
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