Human Rights Standards
In recognition of the unique nature of the death penalty as a final and irreversible punishment, there are now various minimum standards to which countries that still retain and use the death penalty must adhere. Margaret Burnham (2015) has written that although abolition is not yet the general norm, a robust system of procedural safeguards is now the accepted standard.
The below are various human rights instruments which are relevant to the implementation of the death penalty in Trinidad and Tobago and Barbados.
The International Covenant on Civil and Political Rights (ICCPR) is a treaty adopted by the General Assembly of the United Nations. It came into force in 1976. Adherence to the rights guaranteed in the Covenant is monitored by the Human Rights Committee. Both Trinidad and Tobago and Barbados have ratified the ICCPR, albeit with some reservations.
Article 6 safeguards the right to life. At 6(1) it states: ‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.’
Article 6(2) states that capital punishment is an exception to this right. However, 6(2) also provides safeguards in the implementation of the death penalty:
‘In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.’
In addition, 6(3-5) provide further safeguards in the exercise of capital punishment. For example:
- Article 6(3) prohibits the use of the death penalty as part of genocide;
- Article 6(4) states that ‘Anyone sentenced to death shall have the right to seek pardon or commutation of sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases’;
- Article 6(5) prohibits sentence of death being passed on persons below the age of 18 or pregnant women.
In addition to this, Article 6(6) speaks to the purpose and spirit of the ICCPR, and imagines the eventual abolition of the death penalty in retentionist states: ‘Nothing in this Article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.’
Use of the death penalty is not then in itself tantamount to cruel, inhuman or degrading treatment; but the implementation of capital punishment can infringe the standards laid down in the ICCPR, a document which envisaged a progressive move towards abolition.
Article 7 of the ICCPR states also that: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’
Also of relevance, Article 14 outlines minimum requirements for a fair trial. The Office of the High Commissioner for Human Rights has said that if Article 14 is breached in a capital trial, then Article 6 is also breached.
Within Article 14, a broad range of protections are included, such as:
- The right to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
- Adequate time and facilities for the preparation of his defence and to communicate with counsel of his choosing;
- The right to be tried without undue delay;
- The right not to be compelled to testify against himself or to confess guilt.
The First Optional Protocol to the ICCPR provided that citizens of states that were party to the ICCPR could individually and directly petition the Human Rights Committee if a right under the Covenant had been breached. Trinidad and Tobago do not recognise the right of citizens of that country to petition the Human Rights Committee.
In 1989, the Second Optional Protocol explicitly called for abolition of capital punishment in peacetime.
Various UN Resolutions have also called on states to abolish the death penalty:
In 2007, Resolution 62/149 expressed ‘its deep concern about the continued application of the death penalty.’
‘Considering that the use of the death penalty undermines human dignity, and convinced that a moratorium on the use of the death penalty contributes to the enhancement and progressive development of human rights, that there is no conclusive evidence of the deterrent value of the death penalty and that any miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable.’
The Resolution called upon states which retained the death penalty to implement it with regard to international safeguards. The Resolution also called for a moratorium on the use of the death penalty.
The UN subsequently reaffirmed this call for a moratorium, in later Resolutions: 63/168 (2008), 65/206 (2010), 67/176 (2012), and 69/186 (2014).
The American Convention on Human Rights (ACHR) is a human rights treaty. Compliance with the Convention is monitored by the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights. Although both Trinidad and Tobago and Barbados have ratified the ACHR, Trinidad and Tobago subsequently denounced it, in 1998, following conflict over the issue of the death penalty.
Similar to the ICCPR, the ACHR has, at Article 4, a right to life provision. As with the ICCPR, the Convention includes an exception to the right to life regarding the death penalty. This exception also carries with it minimum standards.
Article 4(1) states: ‘Every person has the right to have his life respected… No one shall be arbitrarily deprived of his life.’
Article 4(2) states: ‘In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment…’
The Convention also ensures at Article 8, the right to a fair trial which provides a list of various minimum standards which must be met. Some of the protections under Article 8 include:
- The right to a hearing within a reasonable time;
- Prior notification in detail to the accused of the charges;
- Adequate time and means for the preparation of a defence;
- The inalienable right to be assisted by counsel provided by the state;
- The right not to be compelled to be a witness against himself or to plead guilty.
Crucially, at Article 8(3): ‘A confession of guilt by the accused shall be valid only if it is made without coercion of any kind.’
In 1990, the ‘Protocol to the American Convention on Human Rights to Abolish the Death Penalty’ was adopted. Article 1 of the Protocol called on states to move away from use of the death penalty.
The Safeguards were adopted by the Economic and Social Council in 1984 and endorsed by the UN General Assembly.
The safeguards are listed below:
- In countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences.
- Capital punishment may be imposed only for a crime for which the death penalty is prescribed by law at the time of its commission, it being understood that if, subsequent to the commission of the crime, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
- Persons below 18 years of age at the time of the commission of the crime shall not be sentenced to death, nor shall the death sentence be carried out on pregnant women, or on new mothers, or on persons who have become insane.
- Capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts.
- Capital punishment may only be carried out pursuant to a final judgement rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in Article 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings.
- Anyone sentenced to death shall have the right to appeal to a court of higher jurisdiction, and steps should be taken to ensure that such appeals shall become mandatory.
- Anyone sentenced to death shall have the right to seek pardon, or commutation of sentence; pardon or commutation of sentence may be granted in all cases of capital punishment.
- Capital punishment shall not be carried out pending any appeal or other recourse procedure or other proceeding relating to pardon or commutation of the sentence.
- Where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering.
Additional safeguards were confirmed in 1989, relating to the maximum age at which persons could be executed and the execution of persons with mental retardation or extremely limited mental competence.
These additional safeguards also held that states should ‘take steps to implement the safeguards and strengthen further the protection of the rights of those facing the death penalty’ through: allowing sufficient time and facilities to prepare a defence, including the adequate assistance of counsel, and assistance of counsel above and beyond that afforded in non-capital cases.
The constitutions of Trinidad and Tobago and Barbados also provide fundamental rights guarantees. Margaret Burnham (2015) has pointed out that many of these provisions were closely modelled on the European Convention on Human Rights. The constitutional framework of Trinidad and Tobago and Barbados therefore also provides human rights protections. However, the operation of ‘savings clauses’ in these constitutions makes the interpretation and application of these rights unclear (see ‘Savings Clauses‘ section).
The Constitution of the Republic of Trinidad and Tobago includes, at Part I, ‘Recognition and declaration of rights and freedoms’ and ‘Protection of rights and freedoms.’
The rights protected include:
- The right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;
- The right of the individual to equality before the law and the protection of the law;
- Freedom from the imposition of cruel and unusual treatment or punishment.
The Constitution also guarantees minimum standards for a fair trial, similar to those outlined in the ACHR.
The Constitution of Barbados, at Chapter III, provides for the ‘Protection of Fundamental Rights and Freedoms of the Individual’. In addition to minimum requirements for a fair trial, this section states that citizens are entitled to:
- Life, liberty and security of the person;
- The protection of the law.
At Section 12(1): ‘No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Barbados of which he has been convicted.’
Section 15 holds that ‘No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.’