Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement
of the authorities – constituted an assault on precisely that which it is one
of the main purposes of Article 3 to protect, namely a person’s dignity and
physical integrity.”219
4.2.2 Capital punishment
In international human rights law, recourse to capital punishment is
surrounded by numerous safeguards aimed at limiting and eventually abolishing its use.
For instance, article 6(2) of the International Covenant on Civil and Political Rights
allows the imposition of the death penalty only “for the most serious crimes”, a
provision that has led the Human Rights Committee to conclude that, where the death
penalty was imposed for a conviction of aggravated robbery, the mandatory death
sentence violated article 6(2); this was so since the domestic court could not take into
consideration mitigating circumstances such as the fact that the use of firearms in this
case “did not produce the death or wounding of any person”.220 Other safeguards
contained in article 6 of the Covenant relate to the prohibition both on imposing death
sentences “for crimes committed by persons below eighteen years of age” and on the
carrying out of such sentences on pregnant women. Further, as described above,
according to article 6(2) of the Covenant, death sentences cannot be imposed “contrary
to the provisions of the ... Covenant”, which means that all the due process guarantees
must have been respected in the trial leading to the death sentence.
The Second Optional Protocol to the Covenant aims at the abolition of the
death penalty and entered into force on 11 July 1991. As of 8 February 2002 there were
46 States parties to this Protocol.221
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Article 4 of the American Convention also contains safeguards against
abusive recourse to capital punishment and it cannot, for instance, “be reestablished in
states that have abolished it” (art. 4(3)). Further, “in no case shall capital punishment be
inflicted for political offences or related common crimes”, a limitation that is
particularly important in public emergencies. In addition, the penalty shall not be
inflicted on persons who committed the crime below the age of eighteen or over
seventy years of age, nor shall it be carried out on pregnant women. On 8 June 1990, the
Protocol to the American Convention on Human Rights to Abolish the Death Penalty
was adopted and, as of 9 April 2002, it had eight ratifications.222 According to article 2
of this Protocol the States parties may, however, when ratifying or acceding to the
Protocol, “declare that they reserve the right to apply the death penalty in wartime, in
accordance with international law, for extremely serious crimes of a military nature”.
*****
219 Ibid., p. 16, para. 33.
220 Communication No. 390/1990, B. Lubuto (Views adopted on 31 October 1995), in UN doc. GAOR, A/51/40 (vol. II), p. 14,
para. 7.2.
221 UN doc. GAOR, A/55/40 (vol. I), p. 8, para. 5.
222 See the OAS web-site: http://www.oas.org/juridico/english/treaties.html.
Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
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