While available statistics indicate that there are nearly 20,000 death row inmates out of 11 million prisoners worldwide, the detention standards applied to those subject to, or sentenced to the death penalty do not take into account the specific context in which these inmates live. PRDH’s analysis tends to show that the specific vulnerabilities of death row inmates are not sufficiently addressed in International Human Rights Law.

In general, the procedural rights of prisoners subject to the death penalty are violated, as well as their minimum judicial guarantees. Concerning detention, inmates with a death sentence are often kept in specific areas, but detention on death row is not systematic. The percentage of female death row inmates is low in general. However, it varies from one prison system to another. Some children are sentenced to death in spite of the International Human Rights Law and the International Humanitarian Law, and may be detained for several years before reaching the age of majority to be executed.

International and European human rights law recognize overall protection for persons deprived of their liberty (in particular the United Nations Standard Minimum Rules for the Treatment of Prisoners - 1955 Rules updated in 2015 under the name of the Mandela Rules). However, there is still no specific provision in the International Human Rights Law or Regional Human Rights Law¹ on the detention conditions and treatment of death row inmates, despite the specific vulnerability and needs of persons sentenced to death. Yet, the death penalty constitutes a discriminating and aggravating factor detrimental to the respect for the dignity of convicts and the effectiveness of minimum legal guarantees.

To begin with, nowhere in the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) does it mention any requirement for transparency and the collection of data on death penalties or executions. These omissions are pointed out regularly in recommendations made during State reviews by UN human rights mechanisms. Moreover, while these rules reiterate the fundamental principle of non-discrimination, they do not in any way mention the obligation to not discriminate on the basis of sexual orientation and gender identity². Yet, several countries make legal provisions for the detention and sentencing of death row inmates based on these grounds³.

In many contexts, persons awaiting trial and who are subject to the death penalty may suffer major violations of their basic rights that are not fully recognized by international law, such as:

The right to a fair trial¶

In several countries studied, such as Pakistan and Egypt – countries that are among the top ten practicing the death penalty – the sentences are handed down by judge alone, a procedure that is not likely to guarantee the proper administration of justice. Whereas, in other countries, where the judging is done by a jury, decisions are taken by a majority and not by unanimity. This is the only way to make sure arbitrary decisions are avoided. In some countries like Morocco, members of parliament do all they can to ensure that a decision such as this is taken unanimously. The death penalty should not be pronounced collectively. Collective sentences, as pronounced in Egypt, are in violation of the principle of the law of individual criminal responsibility.

Access to quality interpretation services¶

The issue of access to interpretation services is treated differently depending on the stage in which the accused that is subject to, or sentenced to the death penalty finds themselves in the criminal proceedings. Rule 61 of the Mandela Rules fully covers the issue of interpretation in regard to access to a legal counsel, thereby establishing an obligation of competence and independence for the interpreter¹. Rule 41, which deals with discipline and disciplinary sanction in prison, does not overwrite this obligation for competent and independent interpretation. With regard to access to health care (Rules 24 to 35), there is no mention that a prison authority is obliged to provide an interpreter for exchanges between medical staff and the prisoner. In many countries, such as Mauritania – where death sentences are still pronounced –, there is no system of expert judicial interpreters. However, these judicial experts must meet certain requirements of competence and professional ethics (professional secrecy, moral guarantee of the integrity of their service).

With this particular type of deprivation of liberty, detention conditions and the treatment of death row prisoners are particularly difficult with respect to certain aspects of daily life. Some aspects are insufficiently covered under international law and the Mandela Rules.

Access to education and manual work¶

In most prison systems, access to these is far from being guaranteed or offered to prisoners awaiting execution. For example, in Malawi, female prisoners who are sentenced to death can do gardening activities. In Burkina Faso, female prisoners, including those sentenced to death, can read what they want. It is a different reality in most prison systems around the world. International rules are void of any specific provisions on this subject concerning death row inmates.

Freedom of religious practice¶

Since freedom of religious practice is guaranteed under international rules (Mandela Rules 65 and 66), prison authorities must grant all death row inmates access to a chaplain regardless of sex, age or religious affiliation. Women sentenced to death must have access to a female chaplain if they so request. This gender dimension is not present in the Mandela Rules and the United Nations Rules for the Treatment of Female Prisoners and the Imposition of Non-custodial Measures on Female Offenders (the so-called Bangkok Rules, 2011)

Protection of death row inmates from public curiosity and respect for privacy¶

This protection of persons subject to the death penalty and death row prisoners from public curiosity applies only to certain stages of judicial proceedings and detention under international law, such as during a transfer¹ or a public execution, which is prohibited under International Human Rights Law ². Legal provisions as contained in the 1949 Geneva Conventions could help to strengthen the protection of death row inmates against public curiosity at all stages of the judicial proceedings.

The issue of the remains and personal effects of death row inmates¶

Although Rule 72 enshrines the principle of respect and dignity for the remains of a deceased prisoner, it does not address the question of who bears the financial costs associated with execution. The costs of execution should be borne by the prison authority and not by the family of the deceased. The bodies of death row inmates should not be used for organ trafficking, as is the case in China[^china]. The Mandela Rules only mention the handling of prisoners’ personal belongings upon their release (Rule 67). Hence, these rules remain completely silent on the question of what to do with the personal effects of those sentenced to death, and the positive legal obligation to return them to their family or beneficiaries.

Public awareness and information sharing¶

This issue highlights the importance of raising awareness on the detention conditions of death row inmates as well as that of soliciting a variety of actors (those in power such as Parliament, national human rights institutions, academic and research centres or civil society) in order to conduct research in this area, in keeping with the spirit of Rule 70 of the Bangkok Rules of 2011 on Women Deprived of Freedom³. The addition of such a rule in the Mandela Rules could thus bring to light the lack of reliable data and the limited aspect of worldwide public awareness regarding the issues of detention conditions and treatment of death row inmates, the impact of incarceration on their families, and the importance of sharing information on research findings.

• “The media and the public shall be informed about the reasons that lead to women’s entrapment in the criminal justice system and the most effective ways to respond to it, in order to enable women’s social reintegration, taking into account the best interests of their children.
• Publication and dissemination of research and good practice examples shall form comprehensive elements of policies that aim to improve the outcomes and the fairness to women and their children of criminal justice responses to women offenders. (…)”.

Following the mobilisation and advocacy work of Planète Réfugiés-Droits de l’Homme, the Conseil national des Barreaux (CNB) passed a motion in February 2019 calling for the adoption of an international text that guarantees the rights of persons sentenced to death¹. At the end of the 7th World Congress against the Death Penalty (Brussels, 27 February -1 March 2019), which brought together more than 1,500 participants, the Paris Bar Association and the International Bar Association adopted a joint resolution on the death penalty, the detention conditions and the treatment of death row inmates around the world, urging in particular that we “defend the detention conditions and treatment of death row inmates that preserve human dignity and fundamental rights” and to “participate in international advocacy in favour of drafting, and adopting additional and specific norms that would guarantee better protection of death row inmates around the world, so that recognition of specific guarantees related to their particular vulnerability can be obtained for them»². This resolution was adopted by almost 50 Bar Associations from 32 countries worldwide. The joint declaration adopted by 11 UN special rapporteurs at the end of this 7th World Congress also addressed the issues related to the detention conditions and treatment of death row inmates³.

Conclusion¶

Simultaneously, the discussions held among the many representatives of the European External Action Service (EEAS) of the European Union ought to lead to a better appreciation of the detention conditions and treatment of death row inmates in the new version of the EU Guidelines on Torture, to be published on 26 June 2019. Though the Office of the High Commissioner for Human Rights (OHCHR) and the United Nations Organisation on Drugs and Crime (UNODC) are reluctant to make any changes to the latest version of the Mandela Rules of 2015, these rules are, in spite of their indisputable importance, still lacking when it comes to persons sentenced to the death penalty.

PRDH hopes to be able to continue this work with civil society groups and interested organisations. For further information, please contact Nordine Drici, President of PRDH and Sandrine Ageorges-Skinne, Project manager of Death Penalty in the United States.