RES/36/17 The question of the death penalty

GE.17-17493(E)

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Human Rights Council Thirty-sixth session

11–29 September 2017

Agenda item 3

Resolution adopted by the Human Rights Council on 29 September 2017

36/17. The question of the death penalty

The Human Rights Council,

Guided by the purposes and principles of the Charter of the United Nations,

Recalling the Universal Declaration of Human Rights, the International Covenant on

Civil and Political Rights and all other relevant international human rights instruments, and

reaffirming that all States must implement their obligations under international human

rights law,

Recalling also the Second Optional Protocol to the International Covenant on Civil

and Political Rights aiming at the abolition of the death penalty,

Recalling further General Assembly resolutions 62/149 of 18 December 2007,

63/168 of 18 December 2008, 65/206 of 21 December 2010, 67/176 of 20 December 2012,

69/186 of 18 December 2014 and 71/187 of 19 December 2016 on the question of a

moratorium on the use of the death penalty,

Reaffirming the safeguards guaranteeing the protection of persons facing the death

penalty set out in the annex to Economic and Social Council resolution 1984/50 of 25 May

1984, and the provisions regarding the implementation of the guidelines contained in

Council resolutions 1989/64 of 24 May 1989 and 1996/15 of 23 July 1996,

Recalling all resolutions of the Commission on Human Rights on the question of the

death penalty, the last of which was resolution 2005/59 of 20 April 2005,

Recalling also Human Rights Council decision 18/117 of 28 September 2011 on

reporting by the Secretary-General on the question of the death penalty, Council resolution

22/11 of 21 March 2013 on a panel on the human rights of children of parents sentenced to

the death penalty or executed, Council decision 22/117 of 21 March 2013 on a high-level

panel discussion on the question of the death penalty and Council resolutions 26/2 of 26

June 2014 and 30/5 of 1 October 2015 on the question of the death penalty,

Taking note of the reports of the Secretary-General on the question of the death

penalty, in the latest of which the Secretary-General examined the disproportionate impact

of the use of the death penalty on poor or economically vulnerable individuals, foreign

nationals, individuals exercising the rights to freedom of religion or belief and freedom of

expression, and the discriminatory use of the death penalty against persons belonging to

racial and ethnic minorities, its discriminatory use based on gender or sexual orientation,

and its use against individuals with mental or intellectual disabilities,1

Mindful of the work of special procedure mandate holders who have addressed

human rights issues related to the death penalty, including the Special Rapporteur on torture

and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on

extrajudicial, summary or arbitrary executions, the Special Rapporteur on the independence

of judges and lawyers and the Working Group on the issue of discrimination against

women in law and in practice,

Mindful also of the work undertaken by the treaty bodies to address human rights

issues related to the death penalty,

Recalling general recommendation No. 35 on gender-based violence against women

recently adopted by the Committee on the Elimination of Discrimination against Women, in

which the Committee recommended that States parties to the Convention repeal all criminal

provisions that affect women disproportionally, including those resulting in the

discriminatory application of the death penalty to women,

Recalling also general recommendation No. 31 of the Committee on the Elimination

of Racial Discrimination on the prevention of racial discrimination in the administration

and functioning of the criminal justice system,

Recognizing the role of regional and subregional instruments and initiatives towards

the abolition of the death penalty, which in some cases have led to the prohibition of the use

of the death penalty,

Welcoming the fact that many States are applying a moratorium on the use of the

death penalty,

Noting that States with different legal systems, traditions, cultures and religious

backgrounds have abolished the death penalty or are applying a moratorium on its use,

Strongly deploring the fact that the use of the death penalty leads to violations of the

human rights of the persons facing the death penalty and of other affected persons,

Acknowledging the report of the United Nations High Commissioner for Human

Rights on the high-level panel discussion on the question of the death penalty,2 during

which it was concluded that a significant number of States hold that the death penalty is a

form of torture or other cruel, inhuman or degrading treatment or punishment,

Deploring the fact that, frequently, poor and economically vulnerable persons and

foreign nationals are disproportionately subjected to the death penalty, that laws carrying

the death penalty are used against persons exercising their rights to freedom of expression,

thought, conscience, religion or peaceful assembly and association, and that persons

belonging to religious or ethnic minorities are disproportionately represented among those

sentenced to the death penalty,

Condemning in particular the use of the death penalty against persons with mental

or intellectual disabilities, persons below 18 years of age at the time of the commission of

the crime, and pregnant women,

1 A/HRC/36/26.

2 A/HRC/36/27.

Condemning the imposition of the death penalty as a sanction for specific forms of

conduct, such as apostasy, blasphemy, adultery and consensual same-sex relations, and

expressing serious concern that the application of the death penalty for adultery is

disproportionately imposed on women,

Recalling that, particularly in capital cases, States are required to provide adequate

assistance of counsel at every stage of proceedings, including during detention and arrest,

Emphasizing that access to consular assistance for foreign nationals, provided for in

the Vienna Convention on Consular Relations, is an important aspect of the protection of

those facing the death penalty abroad,

Emphasizing also that lack of transparency in the use of the death penalty has direct

consequences for the human rights of the persons sentenced to death as well as for other

affected persons,

Acknowledging the interest in studying the question of the death penalty, as well as

in holding local, national, regional and international debates related thereto,

1. Urges all States to protect the rights of persons facing the death penalty and

other affected persons by complying with their international obligations, including the

rights to equality and non-discrimination;

2. Calls upon States that have not yet acceded to or ratified the Second Optional

Protocol to the International Covenant on Civil and Political Rights aiming at the abolition

of the death penalty to consider doing so;

3. Calls upon States that have not yet abolished the death penalty to ensure that

it is not applied on the basis of discriminatory laws or as a result of discriminatory or

arbitrary application of the law;

4. Calls upon States to ensure that all accused persons, in particular poor and

economically vulnerable persons, can exercise their rights related to equal access to justice,

to ensure adequate, qualified and effective legal representation at every stage of civil and

criminal proceedings in capital punishment cases through effective legal aid, and to ensure

that those facing the death penalty can exercise their right to seek pardon or commutation of

their death sentence;

5. Urges States that have not yet abolished the death penalty to ensure that the

death penalty is not applied against persons with mental or intellectual disabilities and

persons below 18 years of age at the time of the commission of the crime, as well as

pregnant women;

6. Also urges States that have not yet abolished the death penalty to ensure that

it is not imposed as a sanction for specific forms of conduct such as apostasy, blasphemy,

adultery and consensual same-sex relations;

7. Calls upon States to comply with their obligations under article 36 of the

Vienna Convention on Consular Relations, and to inform foreign nationals of their right to

contact the relevant consular post;

8. Also calls upon States to undertake further studies to identify the underlying

factors that contribute to the substantial racial and ethnic bias in the application of the death

penalty, where they exist, with a view to developing effective strategies aimed at

eliminating such discriminatory practices;

9. Calls upon States that have not yet abolished the death penalty to make

available relevant information, disaggregated by gender, age, nationality and other

applicable criteria, with regard to their use of the death penalty, inter alia, the charges,

number of persons sentenced to death, the number of persons on death row, the number of

executions carried out and the number of death sentences reversed, commuted on appeal or

in which amnesty or pardon has been granted, as well as information on any scheduled

execution, which can contribute to possible informed and transparent national and

international debates, including on the obligations of States with regard to the use of the

death penalty;

10. Requests the Secretary-General to dedicate the 2019 supplement to his

quinquennial report on capital punishment to the consequences arising at various stages of

the imposition and application of the death penalty on the enjoyment of the human rights of

persons facing the death penalty and other affected persons, paying specific attention to the

impact of the resumption of the use of the death penalty on human rights, and to present it

to the Human Rights Council at its forty-second session;

11. Decides that the upcoming biennial high-level panel discussion to be held at

the fortieth session of the Human Rights Council will address the human rights violations

related to the use of the death penalty, in particular with respect to the rights to non-

discrimination and equality;

12. Requests the Office of the United Nations High Commissioner for Human

Rights to organize the high-level panel discussion and to liaise with States, relevant United

Nations bodies, agencies, treaty bodies, special procedures and regional human rights

mechanisms, as well as with parliamentarians, civil society, including non-governmental

organizations, and national human rights institutions with a view to ensuring their

participation in the panel discussion;

13. Also requests the Office of the High Commissioner to prepare a summary

report on the panel discussion and to submit it to the Human Rights Council at its forty-

second session;

14. Decides to continue its consideration of this issue in accordance with its

programme of work.

40th meeting

29 September 2017

[Adopted by a recorded vote of 27 to 13, with 7 abstentions. The voting was as follows:

In favour:

Albania, Belgium, Bolivia (Plurinational State of), Brazil, Congo, Côte

d’Ivoire, Croatia, Ecuador, El Salvador, Georgia, Germany, Ghana, Hungary,

Kyrgyzstan, Latvia, Mongolia, Netherlands, Panama, Paraguay, Portugal,

Rwanda, Slovenia, South Africa, Switzerland, Togo, United Kingdom of

Great Britain and Northern Ireland, Venezuela (Bolivarian Republic of)

Against:

Bangladesh, Botswana, Burundi, China, Egypt, Ethiopia, India, Iraq, Japan,

Qatar, Saudi Arabia, United Arab Emirates, United States of America

Abstaining:

Cuba, Indonesia, Kenya, Nigeria, Philippines, Republic of Korea, Tunisia]