capitalpunishment2015

VI Ижевская Международная Модель ООН

Human Rights

Council

The Problem of Capital

Punishment.

Expert of Human

Rights Council:

Kuznetsova Svetlana

The death penalty is the deprivation of a human life as a punishment, legalized by the state and realized by the court sentence or (historically) by the decision of the other state or military authorities.

In the modern civilized society the capital punishment is illegal in many jurisdictions, in others it is a legal criminal punishment only for grave crimes.

Historically the death penalty "evolved" from the ancient custom of blood revenge, which existed in the pre-state society and was expressed in the formula "an eye for an eye, and a tooth for a tooth". At that time for the relatives of the victim it was important to punish the offender, to revenge, to restore justice. With the appearance of the state punitive functions were gradually transfered to a special state apparatus. Murder of a criminal became public and gained the status of the criminal punishment which was executed on behalf of the state government. However, the list of crimes for which people were executed increasingly expanded.

With the development of the prison system the imprisonment becomes one of the main types of criminal punishment. In the XIX century almost in all Europe both opponents and supporters of the death penalty came to the unanimous conclusion that its publicity affected the public morals badly and that often the flashes of cruelty happened in places where a public execution had just been made. Afterwards the executions were accomplished within the prison fence or in the early morning in the deserted places.

In the XIX century everywhere there was a growing desire for the limitation and even complete prohibition of the death penalty in law. In the XX century the number of lawful executions declined and they lost their terrifying appearance, their excessive brutality. Common in the Middle Ages types of the capital punishment (the crucifixion, the beheading, the gallows, the fire, the burying alive, the quartering, the breaking on the wheel, the drowning and some others) were cancelled.

Thus, the capital punishment was an essential part of development of any country. The question is do we need it now. The death penalty is a very strict way of punishment of criminals in the criminal law, sometimes, of course, fair, but still

cruel. This process has its supporters and opponents, and they both give their own arguments about this punishment, so this question remains open.

Questions of the death penalty are regulated by numerous international documents, including:

•The Geneva Conventions of 12 August 1949, which fixed the guarantees regulated the use of the death penalty in the times of armed conflict;

•The European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, including the Protocol No. 6 of 28 April 1983, concerning the abolition of the death penalty in the peacetime;

•The International Covenant on Civil and Political Rights, 1966; The Safeguards guaranteeing protection of the rights of those facing the death penalty (adopted by the Economic and Social Council of the United Nations in 1984);

•The United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules") of 29 November 1985;

•The second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989).

One of the principles of the international law is respect for the rights and freedoms of a person and the most important human right is the right to life. The right to life is enshrined in many international legal instruments. In the article 3 of the Universal Declaration of Human Rights, 1948 it is said that "everyone has the right to life, to liberty and to personal integrity". According to the article 5 of the Declaration "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". The reverse side of the right to life is the death penalty. The death penalty is the most severe measure of punishment, because it tends to the deprivation of the most valuable thing which a person has – his life, and this loss is irreversible. If the confiscated property can be re-acquired, the limitations associated with other types of punishment will disappear with the expiration of their term, so a person's life is lost forever.

Thus, the capital punishment is contrary to the principle of the right to life, which stands at the head of the international law, and the international law there-

fore follows the path of its abolition prescribing the states to refuse from this form of punishment.

On the other hand, the requirement of the prohibition of the death penalty follows from a non-legal (moral, religious) understanding of the principle of humanity when it is considered as a cruel punishment encroaching on the supreme value which is the human life. However, from the standpoint of the law the death penalty is interpreted differently. The right is a measure of freedom and provides equal opportunities for everyone to realize this freedom, which is limited only by the freedom of others. In case of violation of rights the offender shall be subjected to unfavorable consequences which are equal to the committed wrongful act; only in this case the liability will be fair. The right to life is the fundamental right without which the existence of other rights is impossible; response and fair reaction to the encroachment on this right is the death penalty.

The capital punishment always caused bitter disputes. Among the arguments "for" and "against" the death penalty we can highlight the following:

Arguments "against":

• The possibility of judicial error

One of the arguments against the death penalty, which the member of the Russian Academy of Sciences, A.D. Sakharov, leads, the following: "there is always the possibility of judicial errors. The death sentence makes them irreparable...

the presence of the death penalty dehumanizes the society".

• The struggle against the consequence, but not against the causes

Killing the offender, the state does not concern the reasons which have led him to the crime (the poverty, the ignorance, the inequality, the mental disabilities).

• It does not prevent crimes

It is noted that in most cases the offender expects to avoid punishment, whereupon the death penalty does not have the deterrent effect.

• Terrorist threat

It is believed that the death penalty is ineffective against one of the most dangerous categories of modern criminals – terrorists, as many of them are suicide bombers or constantly risk their lives in the course of committing the crime.

• Dehumanization of society

According to some opponents of the death penalty the use of it as a means of restoring social justice represents a return to the principle of Talion, which has been rejected by the modern right, that gives rise to legal nihilism.

Moreover, the use of the death penalty by the state undermines the fundamental principle of public morality – the full sanctity of human life.

• Contravention of the international standards

The capital punishment contradicts the right to life protected by contemporary international law: the Protocol No. 6 to the European Convention on Human Rights requires the abolition of the death penalty in the peacetime.

Arguments "for":

• The protection of society

The death penalty protects society from the most dangerous and incorrigible criminals.

• More reliable than the life imprisonment (no amnesty)

Many opponents of the death penalty convince supporters of it that the life imprisonment is the tougher punishment. However, supporters of the death penalty lead certain evidence that the life imprisonment for murderers is a softer fate, and the criminals are afraid of the death penalty most.

Any imprisonment, including the life imprisonment, does not completely eliminate the threat to public safety. So, the life imprisonment does not exclude the escape of the convict. In the world cases of successful escapes from the colonies for prisoners on certain terms and the life imprisonment took place. In most cases, the criminals were caught and returned to prison, but it took a lot of time. During this time the offender may commit a new crime. Moreover, there is a danger for prison wardens and inmates of murderers.

• The inability of the relapse

The death penalty ensures that the offender deprived of life would not commit new crimes.

• The principle of Talion as accordance of guilt to punishment

Many relatives of the victims believe the death penalty fair and do not believe in the life imprisonment as a way of retribution. The principle of Talion – "an eye for an eye, and a tooth for a tooth" in this case does not work in the literal sense of the word, as the offender continues to live.

• Economy

Any type of imprisonment (including the life inprisonment) is paid by the state, namely by taxes of law-abiding citizens. This means that relatives of the victims pay taxes, and therefore shall pay life to the killers of their relatives.

The capital punishment in different states at the modern stage.

Despite the proliferation of the death penalty in all times of human history, according to modern researches, it has no effect on reducing crime more than other punishments. In particular, the experts of the United Nations came to such conclusion after analyzing the relationship between the death penalty and the number of murders. So, statistical data from countries-abolitionists does not contain indications that the abolition of the death penalty has negative consequences. In Canada, for example, the number of murders per 100 000 people in 1975 (the year before abolition) was 3,09. In 1980 it decreased to 2,41 and afterwards continued to decline. In 2002 after 26 years after abolition the number of murders per 100 000 people was 1,85 which is on 40 percent less than in 1975.

For these reasons, today in Western countries the extreme penalty of the law is the life imprisonment. In the UK the death penalty was abolished in 1969, in France in 2007 and in Germany in 1987. In Russia the moratorium on the capital punishment was declared in 1997.

If we talk about the types of crimes for which the death penalty is assigned, there are quite a lot of differences in the legal systems of the states. Today exotic types of punishment in many Muslim countries are widespread, for example, in Saudi Arabia, Iran, Iraq. For example, convicted of adultery women should be murdered through stoning. Crimes which are punishable by death in Saudi Arabia include: murder, rape, false prophecy, armed robbery, repeated drug use, apostasy, adultery and witchcraft.

The death penalty is used widely in China. As a rule, people sentenced to death should be shot or injected with lethal injection. There are about 68 types of crimes for which a person in China could face the death penalty, including drug trafficking, economic crimes, including tax fraud, bribery, embezzlement of state property, arson and prostitution. Also the death penalty can be assigned for sexual violence against persons under 14.

The death penalty in the United States is the legal punishment in 32 states. The methods of execution involve hanging, gas chamber, electric chair, firing squad and the lethal injection. The crimes for which a person can be executed are different from state to state, but in most cases the sentence of punishment is imposed for murder or treason.

The abolition of the capital punishment.

Currently, in the world there are two contradictory processes regarding to the death penalty.

On the one hand, there is a reduction of the use of the capital punishment. According to the UN Secretary General's report on the death penalty from 30 June 2014, approximately 160 states of the 193 member states of the United Nations have abolished the death penalty, have introduced a moratorium on the death penalty in law or in practice, or have suspended executions. The important role in this process plays the movement of abolitionists (supporters of complete abolition of the capital punishment). The important role in this process also plays the Council of Europe, one of the conditions of membership in which is the signing of Protocol No. 6 to the European Convention on Human Rights concerning the abolition of the death penalty in the peacetime. In addition, non-governmental organizations are actively involved in the fight against the death penalty. So, the International Amnesty has its representatives in many states. In the Charter of this organization is said that its main goal is to ensure of compliance of the provisions of the Universal Declaration of Human Rights worldwide through the opposition in all possible ways to the application and the use of the capital punishment. One of the forms of activity of this organization is the collection of materials and publication of legislation and actual use of the death penalty in different states of the world.

On the other hand, the process of reducing of the use of the death penalty is not everywhere. Since 1965 nearly 50 countries have expanded the list of crimes that can be sentenced to death, and 21 of the states have imposed the death penalty for crimes against state security, crimes related to drug trafficking, 13 of them – for terrorism, killing of hostages, kidnapping (if it leads to their death), for certain economic crimes (corruption, embezzlement of public funds, armed robbery), and even for the use of alcoholic beverages (in Libya). In some Islamic countries there is the death penalty for adultery, rape, homosexuality, sexual relations between non-muslim and muslim.

So, to sum up, do we need the death penalty now? Is this punishment humane? If the death penalty is necessary, so what types of crimes shall be subject to a sentence of execution? Should there be any age limitations for punishable? If the death penalty is still needed to abolish, shall it be necessary to tighten other measures of punishment of criminals, prison conditions?

You, honourable delegates, should try to solve this problem.