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Death row inmates, detainees forgotten by the law

Amnesty International is sounding the alarm about the application of the death penalty to minors in Iran.

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Text by: Juliette Gheerbrant Follow

8 mins

On the occasion of the 8th World Congress Against the Death Penalty which opens this Tuesday, November 15 in Berlin, interview with the lawyer and specialist in human rights issues, Nordine Drici.

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Fifty-three states still have the death penalty in their legal arsenal.

From this Tuesday until November 18, representatives from 90 countries are expected in Berlin for the 8th World Congress Against the Death Penalty.

Among the many subjects that will be discussed, that of the conditions of detention and treatment of those sentenced to death.

Almost no text regulates this issue.

Nordine Drici is the co-author of a study published with the University of Grenoble on this subject and of a proposal for an international regulation.

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Nordine Drici:

That's exactly it.

Prisoners condemned to the death penalty constitute a blind angle in the question of deprivation of liberty.

Prisoners are a population that is already relegated to the confines of society, but this is even more true for those sentenced to death.

Because death row inmates, in essence, are destined to be executed or die in prison first – states don't care about social rehabilitation, for example, and there are a number of rights denied to them.

Persons sentenced to death also have specific, additional needs that are not covered by the law.

For example, in the United States, we have people who are incarcerated 22 or 23 hours a day, without access to light or physical exercise outside.

This leads to shortcomings which have consequences, but the Mandela Rules [the main international text on the rights of people in detention, editor’s note] do not provide anything on the issue of specific food.

There is also the question of access to health, beyond mental health (many prisoners sentenced to death end up suffering from serious psychiatric problems), once again, the texts are incomplete.

For example, they do not recommend that States provide an interpreter for medical examinations, it is a real constraint for the foreign prisoner: without an interpreter, you probably do not have adequate medical follow-up.

You mention mental health.

Some practices can drive you crazy, such as the isolation or the silence that surrounds the future of prisoners...

Absolutely.

It is also a big problem in connection with the lack of general transparency, but also once the defendants are sentenced, the lack of transparency on the date of execution for example.

On a daily basis, the condemned prisoner does not know.

He gets up in the morning, he doesn't know what's going to happen.

It is a permanent anguish for the detainee, but also for the families and for the lawyers who are not able to follow their clients even after the conviction.

And this "

problem” on the right to information continues once the execution has taken place: there is nothing that really protects the mortal remains of the person sentenced to death in the rules that exist.

The dignity of the condemned is also violated after his execution?

Yes, in Belarus for example, bodies are not returned to families.

There is truly a violation of the right to mourning.

Then there is the case of China.

China goes even further, the United Nations Committee against Torture has raised this point, it uses

without there being automatic prior informed consent.

These organ harvestings have been documented. 

In Louisiana, in the southern United States, a citizen can be a juror in a trial only if he declares himself in favor of the principle of capital punishment.

Does the lack of specific protection exist from the start of the proceedings

Yes, and there are several procedural issues indeed.

This is indeed essential: in some countries where there are training courses, where there are jurors, only people who are in favor of the death penalty are chosen – Louisiana is emblematic.

People who say they are unfavorable to the death penalty cannot be jurors.

Which in fact poses a problem for decision-making, since the principle of a jury is to give several points of view, but here we have a single point of view that prevails.

This prevents the judge from forming, as he should, an “ 

 ”.

► To read also: In the United States, Virginia abolishes the death penalty, a historic moment

There are other issues.

There is certainly a text on the judicial guarantees of prisoners sentenced to death, which dates from 1984, but it is very incomplete.

It does not mention, for example, the prohibition of military tribunals when their impartiality is truly in question.

In June, in Burma, there were 65 death sentences

, in the context of a collective trial

, an emblematic country on this point.

Judging groups of people is contrary to the spirit and application of the law since the sentence must be individual.  

The rules you have drawn up on the detention of death row inmates would, once adopted, be no more binding than Mandela's rules.

How to deal with states that refuse them, or even whose practices add atrocity to capital punishment?

Indeed, it is complicated.

The underlying question is how we can move things forward step by step, what can we do very concretely in terms of advocacy with these States.

It is very difficult in the medium term – I'm not even talking about the short term – to achieve abolition of the death penalty, to persuade them to remove the death penalty from their national legal arsenal.

On the other hand, there are other things that can be done.

We can strengthen the legal framework on very specific points.

On the conditions of detention, we can try to train or strengthen the training of prison officers, that is very important.

The same goes for the training of judges, who make the decision to condemn to death or not.

This also concerns lawyers who must be as well equipped as possible to defend those sentenced to death – the right of defense is of primary importance.  

Many studies have documented that those sentenced to death generally belong to the poorest segments of the population, the most marginalized, even the most ostracized for various reasons.

Another important point on which we can act is that of discrimination, linked to sexual orientation, gender, or even disability, beyond mental disability, the texts do not mention it.

And advocacy involves training stakeholders who will play an important role in decision-making.  

Another lever for action: the penal code.

The idea is to work towards the gradual reduction of the scope of application of the death penalty in a given country.

In China, for example, there has been a reduction in the number of offenses punishable by death.

In Sudan, in July 2020, apostasy was removed from the grounds for capital punishment in the legal arsenal, along with sexual orientation.

So it's these kinds of "

 " things that are important, that make it possible to move forward on the issue of the abolition of the death penalty, by first trying to have as few people sentenced to death as possible in the world.  

Despite this, is it not a paradox to want, on the one hand, to legally regulate a practice and, on the other, to see it disappear

This is a real ethical question and we asked ourselves it at the start of this project – the book is the result of four years of work with various partners in the eleven countries covered, but also an academic partner with the faculty of law from the University of Grenoble.

For us, it is not contradictory.

We must be pragmatic, we know that the universal abolition of the death penalty is not for tomorrow, even if it is progressing gradually since this year 44 States have

.

So we have to find a way, in the meantime, to best protect people who are incarcerated and who are either facing the death penalty or already sentenced to death.

It is a way of being pragmatic and realistic in relation to the progress of the universal abolition of the death penalty.

These people have specific vulnerabilities and are entitled to a legal framework that must be strengthened and respected by States.

► To read also: The death penalty in the world, 40 years after its abolition in France

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