A/67/279
three years in conditions that were not acceptable by Ugandan standards would
amount to cruel, inhuman punishment. With regard to the reasons for the delay, the
Privy Council found that delay inappropriately caused by the prisoner could not be
used to the advantage of the inmate but where a State caused the delay, it was
logical to hold the State responsible for violating the prisoner’s rights. However,
where delay was caused by a prisoner exercising his legitimate right to appeal, the
fault was to be attributed to the appellate system that permitted such delay and not
to the prisoner who took advantage of it. The Privy Council recognized that a
prisoner would cling to any hope in order to protect his or her life, and that such
human instinct could not be treated as a prisoner’s fault. The European Court went
even further and took the position that even if the delay was the result of the
inmate’s actions, he or she was not to be blamed for pursuing life as the fact
remained that individuals were pursuing life under death row conditions with
mounting tension over their own death.
47. Prolonged delay is, however, only one cause of the death row phenomenon
and, considered alone, may be harmful to a prisoner’s rights. This approach risks
conveying a message to States parties to carry out a capital sentence as
expeditiously as possible after it is imposed. The Human Rights Committee declined
to find that delay alone is enough to warrant a finding of death row phenomenon and
a violation based on torture or cruel, inhuman or degrading punishment.
Consequently, even in cases of detention on death row for more than 10 years, the
Committee maintained its previous practice of not finding a violation of article 7 of
the Covenant unless such detention was aggravated by particularly harsh prison
conditions. However, prolonged detention, as with any other delay in the process,
must be subject to judicial review and the highest standards of regular review must
be applied. Medical assistance and psychological follow-up should also be
considered. It is the combined deprivation of basic human rights on death row which
amounts to inhuman and degrading treatment or even torture.
48. Solitary confinement is one of the most common practices used on death row.
As outlined in the previous report of the Special Rapporteur to the General
Assembly (A/66/268), given its severely adverse effects on health, solitary
confinement itself can amount to torture or cruel, inhuman or degrading treatment.
Individuals held in solitary confinement suffer extreme forms of sensory
deprivation, anxiety and exclusion, clearly surpassing lawful conditions of
deprivation of liberty. Solitary confinement, in combination with the foreknowledge
of death and the uncertainty of whether or when an execution is to take place,
contributes to the risk of serious and irreparable mental and physical harm and
suffering to the inmate. Solitary confinement used on death row is by definition
prolonged and indefinite and thus constitutes cruel, inhuman or degrading treatment
or punishment or even torture.
49. Other harsh conditions currently employed on death rows throughout the world
may themselves constitute violations of the prohibition of torture or cruel, inhuman
or degrading treatment. The Human Rights Committee has expressed concern over
the living condition of inmates on death row in terms of visits and correspondence,
cell size, food, exercise, extreme temperatures, lack of ventilation, and lack of time
outside of cells as constituting violations of articles 7 and 10 of the Covenant. The
Special Rapporteur’s predecessor, in the report on his visit to Mongolia, declared
that physical conditions on Mongolia’s death row alone might be so poor as to
amount to cruel treatment (see E/CN.4/2006/6/Add.4).
12
12-45812
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents