Japan’s legal obligations on the use of the death penalty
Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases.
Te Inter-American Commission on Human Rights has considered the effect of Article 4(6) of the American Convention in a number of death penalty cases. In Desmond McKenzie et al v. Jamaica17
the Commission held that procedures for granting mercy or pardon must guarantee condemned prisoners an effective and adequate opportunity to participate in the process:
“In the Commission’s view, the right to apply for amnesty, pardon or commutation of sentence… encompasses certain minimum procedural guarantees for condemned prisoners, in order for the right to be effectively respected and enjoyed. Tese protections include the right on behalf of condemned prisoners … to be informed of when the competent authority will consider the offender’s case, to make representations, in person or by counsel… and to receive a decision from the authority within a reasonable period of time prior to his or her execution.”18
In the landmark decision of Neville Lewis and others v. Attorney General of Jamaica19 , the Privy
Council ruled that fairness was a fundamental requirement of the proceedings before the Jamaican Mercy Committee, the body which ultimately decides who should be executed and who should be granted mercy or a pardon. Te Court adopted an approach to constitutional interpretation, which was consistent with Jamaica’s international human rights obligations:
“…Jamaica ratified the American Convention on Human Rights… and it is now well established that domestic legislation should as far as possible be interpreted so as to conform to the state’s obligations under any such a treaty.”20
Bearing in mind the obligations of Jamaica under Article 4(6) of the American Convention on Human Rights, the Court held that:
“ …it seems… that the State’s obligation internationally is a pointer to indicate that the prerogative of mercy should be exercised by procedures which are fair and proper and to that end are subjected to judicial review”.21
Te decision in Neville Lewis clearly establishes and applies the principle that public authorities who make such important decisions as whether or not a person sentenced to death should be executed must observe basic rules of fairness. Tere is no reason to suggest that the applicable standards under Article 6(4) of the ICCPR are any different, and signatories to the ICCPR should take steps to ensure that condemned prisoners are provided with adequate and effective mercy procedures. Te decision is one of life or death and, as such, domestic law is required to make provision for a proper functioning, transparent, and fair system that allows for the proper consideration of clemency in all cases.
,
17 18 19 20
Inter-American Commission on Human Rights, Case 12.023, Report 41/00, 13 April 2000 See Note 17 above, at paragraph 228 [2001] 2 AC 50
See Note 19 above at paragraph 78F 21 See Note 19 above at paragraph 79B
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