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Capital Punishment and International and National Courts

By way of international courts, the Judicial Committee of the Privy Council (JCPC), in a judgement which may have far-reaching consequences on death penalty cases in the English-speaking Caribbean, commuted the death sentences of six convicted prisoners in Jamaica on 12 September. The JCPC which serves as the final appeal court for English-speaking Caribbean countries such as Jamaica, Trinidad and Tobago, Barbados and the Bahamas, ruled that it is unlawful to execute prisoners whose appeals are pending before international bodies such as the Inter-American Commission of Human Rights and the UN Human Rights Committee.

The JCPC also ruled that the Jamaican Privy Council (Mercy Committee) when considering whether to exercise the prerogative of mercy, must provide prisoners with an effective and adequate opportunity to participate in the mercy process, including notification of the date on which the Mercy Committee will consider the case and the opportunity to make informed representations to the Committee and to challenge any inaccurate information before it.

This judgement overrules previous decisions of the JCPC and other Caribbean courts, including the 1996 decision from the Bahamas, in which the JCPC had held that a condemned prisoner had no rights before the Mercy Committee. The International Court of Justice (ICJ) held public hearings in the LaGrand case (Germany v the USA) from 13 – 17 November in The Hague. For the first time in its history, the ICJ has been asked to determine what remedies are required under international law when arrested foreign nationals are not informed of their consular rights and are then sentenced to death.

German nationals Karl and Walter LaGrand were sentenced to death in Arizona, USA, for killing a bank manager during a robbery in 1982. Although the local authorities were aware of their nationality, the two brothers were arrested, tried and sentenced to death without being advised of their right to consular notification and assistance, as required under Article 36 of the Vienna Convention on Consular Relations. Germany maintains that the treaty violation contributed to the death sentences by preventing consular assistance in the gathering of mitigating evidence for presentation at the sentencing stage of the trial.

German consular officers only became aware of the case 10 years after the trial when they were contacted by the LaGrands, who had finally learned of their right to consular assistance, not from the Arizona authorities but from other prison inmates. Under the US legal doctrine of ”procedural default” the failure to first raise the treaty violation on appeal in state court proceedings prevented the federal courts from considering it as grounds for reversal of the conviction and sentence.

Despite appeals for clemency by the German authorities, Karl LaGrand was executed by lethal injection on 24 February 1999. On 2 March 1999 Germany instituted proceedings at the ICJ for violations of the Vienna Convention committed by the USA. In a unanimous order dated 3 March 1999 the Court called on the USA to take all measures at its disposal to ensure that the execution not take place pending a final decision in the proceedings. Walter LaGrand was executed in the Arizona gas chamber later that same day.

Germany has asked the ICJ to declare that the United States must provide effective review and remedies for death sentences imposed in cases where German nationals were not informed of their consular rights. Germany also requested a guarantee of the non-repetition of the illegal acts and a judgement that the USA violated its international legal obligations by applying the domestic doctrine of procedural default to override the treaty provisions.

The USA admitted the breach of its obligations under the Vienna Convention but asked the ICJ to reject Germany’s demand for legal reparation, arguing that an apology and a promise of future compliance are the only remedies available. The Court’s ruling is expected to establish an important precedent regarding the effect of international treaty obligations on the domestic use of the death penalty. By the end of the year the Court had not finished its deliberations and has yet to deliver its verdict. The Court’s judgement will be binding on both parties under international law and without appeal.

The European Court of Human Rights: In Turkey in January the government decided to halt the procedures related to the execution of Abdullah Ocalan pending a decision on his case by the European Court of Human Rights in Strasbourg. Ocalan, who had been convicted of treason and separatism and sentenced to death, had applied to the Court for a ruling, claiming that his treatment had infringed 12 articles of the European Convention on Human Rights which Turkey is bound to respect as a member of the Council of Europe.

The Court accepted Ocalan’s case in December announcing that it would be tried by a Grand Chamber of 17 judges. In December 1999 Turkey was accepted as an applicant state for membership of the EU and has been urged to abolish capital punishment to membership standards. Finland, the then Chair of the EU, warned that if Ocalan were to be executed it would gravely jeopardise Turkey’s bid to join the Union. No one has been executed in Turkey since 1984.

In January 2001 the court admitted Turkey’s complaint against the transfer of the case to the Grand Chamber, thus the case will be heard instead by the 1st Chamber. It is expected that it will be several months before a ruling is announced. ] Now let’s focus on national courts, beginning with the USA. In October in New Orleans the Federal Appeals Court ruled that a defendant in a capital murder trial does not have an absolute constitutional right to have an attorney who stays awake for the entire trial.

The ruling was made in the case of Calvin J Burdine, during whose trial in 1983, his court-appointed lawyer frequently fell asleep. In 1999 a federal district judge in Houston had ordered a new trial for Burdine, saying that “a sleeping counsel is equivalent to no counsel at all. ” However by a 2-1 majority the panel of the 5th US Circuit Court of Appeals disagreed. The judges maintained they were not condoning sleeping by defense counsel during a capital murder trial but said that from the trial record it was impossible to determine whether counsel’s sleeping actually hurt Burdine’s case.

In Canada on 23 May the Supreme Court of Canada heard arguments in the case of Atif Ahmad Rafay and Glen Sebastian Burns, two Canadian citizens facing extradition to the USA on capital murder charges. Lawyers for the two men argued that their return without satisfactory assurances against the death penalty would violate Canadian constitutional protections and international human rights standards. Among interveners in the case was the Italian Senate, which was given unprecedented permission by the Court to submit a written brief on the European prohibition against extradition to face the death penalty.

The Italian Senate asked the Supreme Court to consider whether Canada, which does not have the death penalty, should be forced to seek guarantees that its citizens will not be executed when they are sent to other countries to face charges for crimes for which they could receive the death penalty. Under Supreme Court rules, intervener status can be granted when a party establishes that it has an “interest” in a case and will make legal arguments which are useful and different to those of other parties.

The Italian Senate, argued that it is in an advantageous geographical position to apprise the judges of legal developments across Europe, where extradition to countries imposing capital punishment is prohibited. [In a unanimous decision issued on 15 February, 2001, the Supreme Court of Canada ruled that Canadian authorities must routinely seek and obtain assurances against the death penalty before allowing extraditions, in all but exceptional circumstances.

Burns and Rafay were later surrendered to face trial after the prosecutor in the state of Washington provided the necessary assurances. ] Guatemala On 14 November the Constitutional Court of Guatemala repealed the death sentences imposed in 1998 on five members of a band of kidnappers. Article 4(2) of the American Convention of Human Rights (ACHR) which Guatemala ratified in 1978, prohibits member states from extending the death penalty to crimes other than those already included in national legislation at the time of ratification.

Nevertheless, in March 1995 the Guatemalan Congress approved Decree 14-95 which extended the death penalty to kidnapping. In giving its decision the court ruled that in matters of human rights, international law prevails over national legislation. Local analysts hope that the acceptance in this case of this important principle in international law will set a significant precedent for future sentencing in cases of kidnapping where the victim does not die.

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