Legal Observations > Death Penalty Transparency

Transparency in relation to the death penalty

28. In his 2005 report to the Commission on Human Rights (E/CN.4/2005/7) the Special Rapporteur drew attention to the problem of a lack of transparency in relation to the death penalty. In particular, he observed that in a “considerable number of countries information concerning the death penalty is cloaked in secrecy. No statistics are available as to executions, or as to the numbers or identities of those detained on death row, and little if any information is provided to those who are to be executed or to their families”.12 He observed that such secrecy is incompatible with human rights standards in various respects, and concluded that “countries that have maintained the death penalty are not prohibited by international law from making that choice, but they have a clear obligation to disclose the details of their application of the penalty”.13 In an addendum to the present report the Special Rapporteur analyses in detail the legal basis of the obligation to be transparent in such matters. Consideration is also given to a range of case studies that illustrate the major problems that exist in this area.

29. Transparency is among the fundamental due process safeguards that prevent the arbitrary deprivation of life. As the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) state, everyone has the right for criminal charges against him or her to be adjudicated in view of the public. The report looks in detail at article 14, paragraph 1, of the ICCPR, which narrowly limits the scope for secrecy at trial, and provides a powerful transparency requirement thereafter. Secrecy throughout the post-conviction process is also limited by State obligations to ensure due process rights and to respect the right to freedom from cruel, inhuman or degrading treatment or punishment.

30. Two key conclusions result from this analysis. First, the public is unable to make an informed evaluation as to the death penalty in the absence of key pieces of information. In particular, any meaningful public debate must take place in the light of detailed disclosure by the State of information relating to: the number of persons sentenced to death; the number of executions actually carried out; the number of death sentences reversed or commuted on appeal; the number of instances in which clemency has been granted; and each of the above broken down according to the offence for which the condemned person was convicted. Notwithstanding the critical role of this information in any informed decision-making process, many States choose secrecy over transparency, but still claim that capital punishment is retained in part because it attracts widespread public support.

31. Second, condemned persons, their families, and their lawyers should be provided with timely and reliable information on the procedures and timing of appeals, clemency petitions, and executions. Experience demonstrates that to do otherwise is highly likely to lead to violations of due process rights and to inhuman and degrading treatment.

32. The case studies demonstrate that non-compliance with these transparency obligations is of considerable practical relevance. Although the death penalty is not prohibited by international law, its use is potentially inconsistent with respect for the right to life when its administration is cloaked in secrecy.

RECOMMENDATIONS

56. Transparency is essential wherever the death penalty is applied. The public is unable to make an informed evaluation as to the death penalty in the absence of the relevant facts. The oversight required to safeguard the right to life depends on the detailed disclosure by the State, on at least an annual basis, of information relating to: the number of persons sentenced to death; the number of executions actually carried out; the number of death sentences reversed or commuted on appeal; the number of instances in which clemency has been granted; and each of the above broken down according to the offence for which the condemned person was convicted.

57. Persons sentenced to death, their families and their lawyers should be provided with timely and reliable information on the procedures and timing of appeals, clemency petitions and executions. Experience demonstrates that to do otherwise is highly likely to lead to violations of due process rights and to inhuman and degrading treatment.

12 E/CN.4/2005/7, paragraph 57.

13 E/CN.4/2005/7, paragraph 59.