22 March 2017
The Human Rights Committee this morning continued its discussion on draft General Comment No. 36 on Article 6 on the right to life of the International Covenant on Civil and Political Rights. It adopted the amended paragraphs 37, 41, 42, 46 and 48 in a first reading, and considered paragraphs 49, 50 and 51 of the draft General Comment.
YUVAL SHANY, Committee Rapporteur, started by reminding briefly about the already adopted paragraphs 36, 38, 39, 40, 43, 44, 45 and 47. Those were circulated for information purposes.
He then presented the new formulation of paragraph 37 defining “the most serious crimes”. The modification aimed to underscore the important terms, such as “intentional killing”. In the discussion that followed, one of the Experts suggested to remove the specification that the death penalty could be imposed “as a form of legal retribution”, and alerted that introducing the notion of “objectivity” in what concerned the qualification of the crimes could question the objectivity of other aspects and of other paragraphs. Another Expert supported the idea of keeping the term “political crimes” into square brackets until the second reading. The Rapporteur accepted all the suggestions from the Experts, and the article was adopted as amended.
Turning to paragraph 41, the Committee Rapporteur reminded of a lengthy discussion, which had led to several changes of language, including from positive to negative in what concerned the application of the death penalty once it had been abolished, according to the principle of “nulla poena sine lege”. Experts suggested further reformulations from positive to negative, such as replacing the term “available” by “provided by law” in the sentence “death penalty can never be imposed, if it was not available to the offence”. Following a discussion whether to keep or remove the Latin expressions in view of simplifying the text for a lay reader, the Rapporteur decided to keep them in the text. The Committee then proceeded to adopt the paragraph as amended.
In what concerned paragraph 42, Mr. Shany informed that the new formulation resulted from the Committee’s previous discussions and was more restrictive and less open-ended. The paragraph was adopted with amendments.
Regarding paragraph 46, the Rapporteur said that he had integrated most of the previous remarks from the Experts. Experts welcomed the overall reformulation proposed, and suggested to revise paragraphs 39 and 43 in the future, in the light of changes in paragraph 46. The Committee also decided to remove the language in square brackets: “In applying to the death penalty, courts must not exercise their discretion to take individual characteristics into account in a manner that results in unequal application of death penalty”. The paragraph was adopted as amended.
The new formulation of paragraph 48 resulted from previous comments from Experts, who also requested to talk about a “sentenced person” instead of a “convict”. Amended, the paragraph was approved.
The Committee then proceeded to a first reading of the second revision of the Draft General Comment No. 36, articles 49 to 51.
Mr. Shany presented the new formulation of paragraph 49, which required from the States parties to provide individuals sentenced to death with the possibility to seek pardon or commutation. The idea behind the changes was to regularise the pardon process, as well as to ensure its timeliness and clarity. In the ensuing discussion, one of the Experts suggested to talk about the “certainty” of the process, rather that its “clarity”; other Experts suggested the removal of the mention of the “preponderant role in determining whether the death sentence should be carried out” related to the families of the victims; those suggestions were accepted by Mr. Shany. As to the suggestion to remove the third sentence: “Article 6, paragraph 4 does not prescribe a particular procedure for the exercise of the right to seek pardon or commutation and States parties consequently retain discretion in spelling out the relevant procedures”, the Rapporteur considered it important to retain it. In a reply to the other reformulation suggestions, the Committee decided to keep the language as it was, and to adopt the paragraph as amended.
Moving to paragraph 50, the Rapporteur agreed with the content of the first two sentences, and suggested to remove the remainder of the paragraph. One of the Experts welcomed the suggestion, underlining that the new version would focus more on protecting the minors and pregnant women. In the ensuing discussion, the overwhelming majority of Experts supported the idea as well. As to the first two sentences, some of the Experts suggested to replace the term “minors” with “persons below the age of 18”, since the definition of a minor varied between the countries. Given those and further comments, the Committee decided that the Rapporteur would reformulate the paragraph and submit it for discussion at a future meeting of the Committee.
Mr. Shany then presented several suggestions to reformulate paragraph 51, which referred to sentencing “other categories of individuals” with the death penalty. Since the ensuing discussion could not be concluded, the Chairperson announced that it would continue in a future meeting.
The Committee will hold private meetings until Wednesday, 29 March at 10 a.m, when it will meet in public to discuss its methods of work, accept bureau decisions and close the hundred and nineteenth session.
For use of the information media; not an official record