上午

2013年9月11日

人权理事会今日上午就被判死刑者或被处决者子女的人权问题举行小组讨论。

联合国人权事务副高级专员弗拉维亚∙潘谢里在开幕致辞中表示，被判死刑者或被处决者子女的人权问题近几年得到了越来越多的关注。根据国际人权法，处决父母可能会导致其子女的权利受到侵犯。除了这些直接影响，也有证据表明被判死刑者子女还可能遭受歧视和社会疏远，而这属于《儿童权利公约》的管辖范围。

人权事务高级专员办事处研究和发展权利司司长玛西娅·柯岚代表负责暴力侵害儿童问题的秘书长特别代表玛尔塔·桑托斯·派斯宣读声明，她表示，今天的会议提出了一个至今普遍遭到忽视但又至关重要的领域。截至目前，被判处死刑者的子女人数无法从数据、政策和项目中得知。将身为父母者判处死刑，侵犯了许多项儿童权利的享有。

比利时驻联合国日内瓦办事处常驻代表兼小组讨论主持人伯特兰·德·克鲁姆布鲁格表示，父母遭到处决对其子女造成的负面影响引人关注。政府有责任确保儿童受到适当的照料和援助。理事会已要求人权事务高级专员办事处就小组讨论的成果准备一份报告。

小组成员包括：联合国儿童权利委员会成员豪尔赫·卡尔多纳·洛伦斯；罗文大学副教授桑德拉·琼斯；来自约旦国家人权中心的妮斯琳·泽利卡特；“希望之井”执行主任弗朗西斯·苏乌比。

联合国儿童权利委员会成员豪尔赫·卡尔多纳·洛伦斯表示，将身为父母者判处死刑是一个关乎其子女的问题，在做出这个决定时，应考虑子女的最佳利益，这也是儿童的权利。一旦判决通过，对儿童可能造成的积极或负面影响必须被考虑在内。《儿童权利公约》各缔约国有法律义务在作出每一次关乎儿童的决定时开展评估。鉴定和评估必须是单一的、相关的、明确的。

罗文大学副教授桑德拉·琼斯提到了美国死刑犯子女的创伤和悲痛。死刑犯子女受到的影响是多重的，包括社会与教育上的孤立。处于这种情况之下的儿童通常展现出医学心理上的症状，例如创伤后应激障碍和绝望情绪，还容易出现行为问题。

来自约旦国家人权中心的妮斯琳·泽利卡特表示，国家人权机构在保护被判死刑者子女方面发挥着作用，为他们呼吁权利。约旦的国家人权机构除了为囚犯提供帮助，还为其家庭和子女服务。执法机构应该在儿童权利方面接受更多的教育。

希望之井执行主任弗朗西斯·苏乌比表示，儿童生活在父母被处决所造成的恐惧中，深受创伤。被判死刑者的子女面对着更大的心理健康风险，例如睡眠问题、自尊降低、饮食不规律等。他们还面临着其他风险，例如早婚、退学或强奸。各国需要一个对儿童友好的刑事司法系统，且必须确保儿童能够和狱中的父母保持联系。

发言人在讨论中表示，死刑对被处决者家庭造成了负面影响。决定实施死刑的各个国家必须考虑儿童的最佳利益，以及死刑可能对被处决者子女造成的负面影响。注意到的问题还包括，被处决者的家庭成员也是潜在受害者。各国必须为被处决者的子女和家人提供适当的援助。父母被判死刑对子女的影响并未得到充分认识，现有的研究显示，儿童在这些情况下会表现出情感和心理上的压力。避免儿童遭受这种极端折磨的唯一方式是，不执行死刑。一名发言人提到，对这个议题达成共识并不容易，因为这是一个非常复杂的问题，对许多代表而言，它也有许多模糊的解读。将儿童问题与极刑联系起来，产生的问题要远多于解决方法。

在讨论中发言的有巴基斯坦、阿尔及利亚、代表拉美及加勒比国家共同体的古巴、阿根廷、西班牙、挪威、瑞典、澳大利亚、意大利、安哥拉、法国、爱尔兰、比利时、波兰、摩洛哥、瑞士、泰国、英国、黑山、埃及、新西兰、奥地利、阿拉伯联合酋长国、欧盟、南非、葡萄牙和摩尔多瓦共和国。

在讨论中发言的还有刑法改革国际、公谊会世界协商委员会、南风发展政策协会、大赦国际和塞尔瓦斯国际。

人权理事会将在今天下午1点继续开展工作，届时将结束与以雇佣军为手段侵犯人权并阻挠行使民族自决权问题工作组和促进民主和公平的国际秩序独立专家的集体互动对话。理事会随后将听取危险物质及废料的无害环境管理和处置对人权的影响问题特别报告员和享有安全饮用水和卫生设施的人权问题特别报告员关于其报告的讲话，之后开展集体互动对话。

Opening Statement

FLAVIA PANSIERI, Deputy High Commissioner for Human Rights, said that the topic of the rights of children of those sentenced to death or those executed had received growing attention in recent years. As a starting point, it was worth repeating that the Office of the High Commissioner for Human Rights would like to see the abolition, or at least a moratorium, on the death penalty all over the world. The Office was pleased with the progress that had been made in this respect in the legislative frameworks of many States. Meanwhile, States that had not abolished the death penalty but were signatories to international human rights laws such as the Convention of the Rights of the Child must at least guarantee fair trails and due process accordingly. There were limitations therefore on the scope of the ways the death penalty was applied in States that chose to uphold it. This had implications on the children of parents sentenced to death. The five-yearly statement that the Secretary-General made about the abolition of the death penalty included consideration of the rights of such children.

Existing research indicated the negative effects on children whose parents had been sentenced to death and various articles of the Convention on the Rights of the Child could be applied to their cases. The execution of a parent could affect the child to such an extent that his or her rights were violated under international human rights law. Apart from these direct effects, there was evidence that the children of those sentenced to death or those executed could also be subject to discrimination and alienating social conditions that fell under the ambit of the Convention on the Rights of the Child. The right to information, sometimes not granted to the children of those on death row or had been executed, was not always upheld; this was also a concern. This was not a call for impunity; crimes must be punished and justice must be served. However it was important to look beyond the individual criminal and consider the ripple effect of sentencing on his or her family. The Deputy High Commissioner looked forward to a fruitful discussion on this topic.

Keynote Statement

MARCIA V.J. KRAN, Director of the Research and Right to Development Division at the Office of the High Commissioner for Human Rights, reading out the statement of MARTA SANTOS PAIS, Special Representative of the Secretary-General on Violence against Children, said that today’s meeting raised an area of critical concern that had been so far largely neglected. Until now, children of parents sentenced to the death penalty had been invisible in statistics, as well as in policies and programmes. The number of children affected by this devastating situation was unknown; more research was urgently needed on the topic. Studies made by the Quaker UN Office and others revealed that a majority of those children came from disadvantaged families. The impact of this cruel and inhuman treatment on family members could not be denied. The loss of a parent, when it resulted from the action of the authorities, was particularly confusing and frightening for the child. They endured post-traumatic stress disorder and behavioural problems may occur. States that sentenced parents to death tended to give little or no assistance to children’s care and protection. At the same time, the serious stigma association with persons sentenced to death often made it difficult to find alternative care givers, which further exacerbated the trauma endured by the child. These children may be at heightened risk of homelessness and exposure to violence and to being manipulated into a criminal path.

The sentencing of a parent to the death penalty compromised the enjoyment of a wide spectrum of children’s rights. It was critical that the situation of children of parents facing the death penalty get the urgent attention and action it required. It was also important to recall that today there were children being subject to the death penalty. The Convention on the Rights of the Child banned the imposition of capital punishment for offences committed by persons below 18 years of age. It was imperative that this fundamental provision was respected and duly implemented in all countries of the world. A paradigm shift was needed to promote human, healing, restorative and efficient ways of preventing and dealing with crimes; ways that not only benefitted the individuals concerned, but helped to secure long lasting safety in society as a whole.

Statement by the Moderator

BERTRAND DE CROMBRUGGHE, Permanent Representative of Belgium to the United Nations Office at Geneva and Moderator, said that the negative impacts of a parent’s execution on his or her children and the consequences they had to bear were of concern. Children should not have to pay for what their parents had done. The State had a responsibility to ensure that children received the care and assistance that they may require. A human rights approach to the issue had to be established. Resolution 22/11 referred to the provisions of the Convention on the Rights of the Child. The Human Rights Council was the adequate place to tackle human rights issues linked to the death penalty. Today’s panel discussion had a universal appeal. It also mattered for countries that did not apply the death penalty, as their nationals may have been handed the death penalty in another country. The Council requested the Office of the High Commissioner for Human Rights to prepare a report on the outcome of the panel, in the form of a summary, and to present it to the Human Rights Council at its twenty-fifth session.

Statements by the Panellists

JORGE CARDONA LLORENS, Member of the United Nations Committee on the Rights of the Child, said that this morning there would be an opportunity to hear from various experts about the consequences for children whose parents had been sentenced to death or executed. The sentencing of a parent to death was a question that concerned the child and the child had the right to have its best interest taken into account when the decision was taken. When the sentence was passed, an estimation of the possible positive or negative effects for the child or children concerned had to be taken. States parties to the Convention on the Rights of the Child were legally obliged to carry out this assessment each time a decision concerning a child was taken. That determination and assessment had to be singular, relevant and explicit. The best interest of the child once estimated and assessed may come into conflict with other interests or rights, such as public interest. In such cases conflicts had to be resolved on a case by case basis. If there was an alternative to the death penalty, then that compatible alternative should be selected as a matter of priority. If the death penalty was adopted, there was also the possibility of a pardon. If the State did not respect the right of the child and had not carried out the proper assessment and evaluation, then the sentence would have violated a right of the child which was directly applicable in court.

SANDRA JONES, Associate Professor, Rowan University, spoke about the grief and trauma found among children of death row inmates in the United States. Although it was difficult to talk about absolute numbers due to lack of research, the term “children of death row inmates” might include other relatives such as nieces or nephews. In the context of the United States it was fair to generalize that the death row inmates were men. The effects on the children of death row inmates were multiple: social and educational isolation; deterioration of the parent-child emotional relationship; cycles of grief, loss and guilt; emotional conflict between competing instances of loss (wherein the death row inmate was often the murderer of another family member, for example, the child’s mother). Children in such cases often displayed medical-psychological conditions such as post-traumatic stress disorder, panic attacks, suicidal tendencies, and depression as well as being prone to behavioural problems like substance abuse and excessive anger.

NISREEN ZERIKAT, National Centre for Human Rights of Jordan, said national human rights institutions played a role in the protection of the children of those sentenced to death in Jordan (where a moratorium on the death penalty was in place), in that they spoke up for the rights of such children. As well as offering support to prisoners, national human rights institutions in Jordan extended their services to their families and children. Information about the psychological stress experienced by the children of prisoners had been garnered by the centres that worked with them in Jordan in order to understand their trauma further. It was important to work with both the media and schools to make them aware of the rights of children whose parent had been sentenced to death (albeit suspended) in Jordan. Law enforcement bodies could also be better educated on the rights of the child.

FRANCIS SSUUBI, Executive Director, Wells for Hope, said that his organization provided assistance to children with a parent in prison, including free education and general welfare. There were 408 people on death row in Uganda and the last executions were carried out in 1999. It was very traumatizing for children to live in fear of their parent’s execution. Children with a parent on death row faced a higher risk of mental health difficulties, such as sleeping problems, low self-esteem, anger and eating disorders. In addition, they faced other risks, such as early marriages, school dropout or rape. Some challenges met by Wells for Hope included the lack of research and of funding. Child-friendly criminal justice systems were needed; States had to ensure that children could maintain contact with their parent in prison. In addition, States had to create a system where children were protected from risks, defended, fed, clothed, sheltered and given medical care. Some of the main challenges were the invisibility of children with a parent on death row and the fact that some people thought that children should suffer because of their parent’s guilt.

Discussion

Pakistan, speaking on behalf of a group of countries, said that a holistic approach was needed. Sentences of death should only be imposed on the most serious crimes and in line with the relevant legislation. There was also a great need to protect children of parents who had been victims of incommunicado detentions or extraordinary renditions. Algeria said that children were considered as a vulnerable group. A moratorium on the death penalty was in force in Algeria since 1993. The best interest of the child was always taken into account when imprisoning someone. Cuba, speaking on behalf of the Community of Latin American and Caribbean States, said that the death penalty had negative impacts on the family of the person executed and it was necessary that the State provided support to his or her children and family. Argentina said that States that decided to apply the death penalty had to take into account the negative effects that it could have on the children of the person executed. Angola informed the Council that it had abolished the death penalty and called on all States to stop carrying out death penalties.

Spain said that the abolition of the death penalty was a priority. The best interest of the child had to be taken into account when sentencing to death someone who had children. Norway said that families of the person executed were hidden victims. What steps could be taken to ensure that families of persons executed were recognized as victims? An Expert Seminar should be convened to explore further this issue and the rights of the child in this context. Sweden said that the death penalty could never be justified. The best interest of the child had to be taken into account when sentencing parents to the death penalty and States had to provide children with the appropriate assistance. Australia underlined that the death penalty had no deterrent effect; however there were clear negative impacts on the family of the person executed. France said that the death penalty was a denial of justice and was not useful to fight crime. How could they guarantee full respect for article 9 of the Convention on the Rights of the Child? Ireland was opposed to the death penalty in all circumstances. Executing a parent would negatively impact the basic rights of his or her children. In many cases, children were left without appropriate support. Italy said that more research on this issue was required.

Penal Reform International said that many aspects of this issue had not been explored; an expert meeting would be useful. A representative of Verein Sudwind Entwicklungspolitik said that one of her parents had been executed when she was a child and called on all States not to execute parents. Friends World Committee for Consultation, in a joint statement, said that there was an inherent trauma of knowing that a parent would be executed. States had to ensure that the appropriate assistance was provided to children whose parents had been executed.

JORGE CARDONA LLORENS, Member of the United Nations Committee on the Rights of the Child, said that the rights of the child and its best interest should be a primary consideration as stipulated in the Convention on the Rights of the Child, obliging all States with the competence coming from being States parties to the Convention that child rights be observed. Considering the best interest of the child and the obligation to adopt the necessary measures to ensure its respect were essential. When it came to weighing the best interests and rights of the child, including public interest and a possible conflict between these, the best option was to give priority to the rights of the child.

SANDRA JONES, Associate Professor, Rowan University, said that indeed many children reoffended along the lines of their parents, particularly young boys of men on death row, who had been seen to have extreme anger issues, seen to go in and out of juvenile institutions, or to be suicidal, among others. There were victims’ families that opposed the death penalty. Such individuals could be helpful to these children. However, all too often, families of a defendant were forbidden to have contact with murdered victims’ families. In the case where there could be reconciliation between the two families, that should be something to be encouraged. There were cases where children suffered beyond their parent being on death row, including where parents had been sentenced to life imprisonment. Children still had neglected needs that needed to be attended to.

NISREEN ZERIKAT, National Centre for Human Rights of Jordan, said the rights of the convicted person were one thing, but the rights of their innocent relatives were surely paramount. The subject of the death penalty itself threw up a host of questions in the arena of international and cross-border legal frameworks. Execution was a failure: its deterrent effect remained unproved. Penal systems had to be reformed to reflect this.

FRANCIS SSUUBI, Executive Director, Wells for Hope, said he welcomed the sympathy speakers expressed toward children of convicted criminals. Concerted action between non-governmental organizations, civil society and aid agencies was needed in developing nations such as Uganda to prevent the cycle of pain and abuse that the children of those executed or sentenced to death were being put through. Their plight could be compared to holding a rat by its tail for an extended time – an unnecessary prolongation of trauma.

Switzerland said that the application of the death penalty seriously affected the rights of all children whose parents had been sentenced, awaited sentencing or had been executed. Poland said that as a country opposing capital punishment, it considered the theme of the debate as pertinent and that effective action was urgently needed. There was a need for the recognition, protection and promotion of the rights of children after their parents’ execution. Montenegro said that it was committed to encouraging international efforts to support children whose parents had been sanctioned to death and strongly advocated the abolition of the death penalty. Egypt said that the separation of children from their parents was certainly associated with many negative impacts on the development and future for these children. Republic of Moldova said studies showed that children faced discrimination or stigma from their peers which could lead to acts of violence or isolation, and these children needed support and assistance. In serving the best interest of the child, they served the best interest of humanity. European Union said that this panel was an excellent opportunity to look at ways and means of mitigating the negative impact of this issue.

Thailand said that the death penalty was imposed only for the most serious crimes and due process was exercised. Particular attention was paid to children whose parents were sentenced or executed, as they may suffer trauma due to their loss. Morocco said that the negative effect of the death sentence on the rights of children had been examined and it was committed to implementing the provisions of the Convention and the Protocols in order to ensure harmonization of legislation with these. The United Kingdom asked how could children of parents’ sentenced to death in foreign countries be better protected and Belgium asked the panel to make concrete recommendations for States to better take into account the needs of children whose parents had been sentenced to death or executed. South Africa was deeply concerned by the plight of all children who had been forcibly separated by their parents. What was the role of national human rights institutions in ensuring that States built their capacities in this area?

United Arab Emirates said that it was not easy to reach consensus on this topic as the question was very complex and for many delegations it had ambiguous ramifications. Linking the question of children with capital punishment raised more questions than bringing about solutions. Austria respectfully called on all States who had not yet abolished the death penalty or introduced a moratorium, to do so expeditiously. New Zealand recognized that the issue of the death penalty was at times a divisive one but it was hoped that States would find common ground on the need to protect children from its impact. Portugal said that the impact on children of the imposition of the death penalty was not yet fully understood and that existing studies indicated that children in these circumstances displayed emotional and psychological distress. The only way to avoid this form of extreme suffering by children would be to not enforce the death penalty. In Servas International’s experience, international exchange could improve the situation, changing opinions and behaviours. They should not wait for the next generation to change the world and the situation that they were talking about. Amnesty International was especially concerned about secrecy surrounding detention on death row, execution and burial.

JORGE CARDONA LLORENS, Member of the United Nations Committee on the Rights of the Child, thanked participants for their contribution to the debate and highlighted that there was a consensus on the contents of the Convention on the Rights of the Child as States had ratified it, including the importance of the consideration of the best interest of the child. Mr. Cardona Llorens was simply providing the interpretation of the Convention put forward by the relevant Committee. There was little doubt that the death penalty fell in the category, among other sentences, negatively affecting the interests of the children of the victim. The Committee had made this clear in General Comment 14. States were also responsible to ensure the best interest of the child in the context of the application of punitive measures. It had been asked if another General Comment could be drafted and Mr. Cardona Llorens would transmit this question to the Committee. There was a need for the treaty body system and the Council to think further about how to assess the primary consideration of the child and its best interest, in particular, in the context of specific cases.

SANDRA JONES, Associate Professor, Rowan University, said that children of those sentenced or punished with the death sentence faced numerous challenges, including extreme trauma, stigma, discrimination, lack of recognition, and a number of psychological symptoms. There was an ambiguous loss aspect of the bereavement of these children and anticipatory grief in the cases of execution of their parents, which had been described as the ‘black cloud’ of an impending execution. Responding to the request for specific recommendations, Ms. Jones said that additional support to children was needed, to the extent that the death penalty was not being eliminated, from the moment of arrest to execution. Certainly, more child friendly visitation procedures could be implemented, including physical contact and allowing children to spend time alone with their parents. Counselling services should be extended to children of persons sentenced to death.

NISREEN ZERIKAT, National Centre for Human Rights of Jordan, said that the best solution to this problem would be to abolish the death penalty once and for all. Further discussions were needed on this important topic. National human rights institutions played a vital role with regard to prisons. They had the power to improve the conditions of detentions, notably through the production of reports and advocacy activities. National institutions could also facilitate visits of children to their parents. States should make a solid commitment to improving the position of children who lived in these circumstances. The children of a person executed tended to become victims as well and faced stigmatization.

FRANCIS SSUUBI, Executive Director, Wells for Hope, said that more research was needed on this important topic. It was necessary to establish the number of children with a parent in prison and to help them. The most important thing for those children was to visit their imprisoned parent. The children should be allowed to regularly see their parents without unnecessary restrictions. Schools should be involved, because they could provide children with the appropriate assistance. The international community should stop talking and start acting. Today’s panel should be the beginning of a great change.

BERTRAND DE CROMBRUGGHE, Permanent Representative of Belgium to the United Nations Office at Geneva and Moderator, thanked all panellists and Members States and others for their contributions and said that precious experiences were shared. The Council was now better informed on the promotion and protection of children whose parents were sentenced to death or executed, and they were all better informed of the challenges for and needs of States in this area.

REMIGIUSCZ A. HENCZEL, President of the Human Rights Council, thanked all panellists, the moderator and participants that had contributed to today’s discussion.
__________

For use of the information media; not an official record