人权理事会举行关于死刑问题的高级别小组讨论会（部分翻译）

下午

2014年3月5日

人权理事会今日下午举行关于死刑问题的高级别小组讨论会，交换了在废除死刑和引入死刑暂缓机制方面的进展、最佳做法和挑战的相关意见。

讨论包括联合国秘书长潘基文的视频讲话以及联合国人权事务高级专员纳维·皮莱的发言。

潘基文秘书长在视频讲话中提到，反对死刑的潮流在各地日渐强劲，他对仍有太多人被匆忙判处死刑表示遗憾，而这违反了正当程序的国际标准。死刑是不公正的，也不符合基本人权，各国必须尽最大努力终结这种残忍而不人道的做法，包括批准《公民权利和政治权利国际公约》的第二项任择议定书。

皮莱女士对秘书长表示支持，并敦促仍保留死刑的各国迅速推动死刑的废除，她也深为痛惜地表示，仍有大约20个国家在执行死刑，这通常直接违背了国际人权标准。死刑无法与人权相互调和，并使免受酷刑和其他残忍、不人道或有辱人格待遇的权利岌岌可危，而且并无证据表明死刑有震慑作用。针对死刑问题开展国家辩论并为公众提供平衡而准确的信息至关重要。

法国驻联合国日内瓦办事处常驻代表尼古拉斯·尼姆奇诺（Nicolas Niemtchinow）主持了讨论，他表示死刑不仅是正义问题，而是歪曲正义的问题。它必然是一种人权侵犯。死刑是特别复杂的问题；它是一场长期斗争，但也是一项全球事业，没有什么能够阻挡。废除死刑是一个远大的目标，同时也是一个公平而可以实现的目标。

人权理事会主席波德莱尔•恩冬•艾拉（Baudelaire Ndong Ella）介绍了高级别小组讨论会，称讨论会源于人权理事会2013年3月通过的一项决议，决议认识到各国就死刑问题召开全国辩论并召集该会议的重要性。

参与今天小组讨论的有贝宁司法与人权部部长瓦伦丁·杰诺丁·阿戈苏（Valentin Djenontin-Agossou）；摩洛哥国家议会副议长兼摩洛哥反死刑议员网络协调人哈蒂嘉•鲁伊西（Khadija Rouissi）；美国无罪见证组织（Witness to Innocence）宣传主任柯克·布鲁沃斯（Kirk Bloodsworth）；国际反死刑委员会专员兼前任法外处决、即审即决或任意处决问题特别报告员阿斯玛·贾汉吉尔（Asma Jahangir）。

杰诺丁·阿戈苏先生请各国致力于废除死刑，并注意到死刑并不构成消除犯罪的切实方案，不符合生命权，并在司法错误方面存在不可接受的风险。

鲁伊西女士表示，伊斯兰教并非原教旨宗教，有必要超出教条和部落思维，从而服务于理性和平等。死刑是对生命权最为制度化的攻击，因此将其废除是所有重大刑法改革的前奏。

布鲁沃斯先生表示，他是美国国内首个通过DNA检验被免除死刑的人，此前他已在死囚房呆了两年。他说，美国的死刑系统是无效并且错误的。既然他有如此遭遇，这类状况也会发生在全世界任何人身上。

贾汉吉尔女士说，亚洲对死刑废除运动构成挑战，因为大多数死刑是在亚洲执行的。她呼吁亚洲乃至全世界所有人汇聚努力，使亚洲成为一个不存在死刑的大洲。应有更多亚洲国家采用旨在废除死刑的死刑暂缓机制，也应该增强刑事司法系统。

在随后的讨论中，许多发言人表示，死刑侮辱了人格尊严，他们反对在任何情况下使用死刑。死刑违反了生命权，损害了人格尊严，因此打造一个不存在死刑的社会应该成为所有行动的中心。多名代表坚称，并没有证据支持死刑预防犯罪的有效性，并对其不可挽回性表示关切。建立暂缓机制只能是第一步，因为确保死刑不再执行是重中之重。

其他发言人强调，由于文化和知识框架的差异，死刑是一个敏感议题。只要死刑的使用符合相关国际文书，各国在选择法律系统方面拥有主权和不可剥夺的权利，且不受其他国家干扰。呼吁废除死刑也不应该忘记受害者的权利以及国家安全的考量。

在讨论中发言的有以下会员国：纳米比亚、巴西（代表葡萄牙语国家共同体）、苏丹、蒙古、塞拉利昂、沙特阿拉伯、新加坡（代表26个意见相同的国家）、瑞士（代表44个国家）、科威特（代表海湾合作委员会）、欧盟、爱尔兰、新西兰、斯洛文尼亚、比利时、欧洲委员会、印度尼西亚、摩洛哥、意大利、瑞士、墨西哥、奥地利、澳大利亚、西班牙、卢旺达、中国、法国和埃及。

以下非政府组织也作了发言：刑法改革国际（Penal Reform International）、大赦国际、国际减害协会（International Harm Reduction Association）、国际人权联合会（International Federation of Human Rights Leagues）、国际消除一切形式种族歧视组织（International Organization for the Elimination of All Forms of Racial Discrimination）和南风发展政策协会（Verein Sudwind Entwicklungspolitik）。

人权理事会将于3月6日（周四）上午10点继续高级别部分。理事会随后将举行常务部分，之后与人权高专开展关于其年度报告的互动对话。

开场发言

人权理事会主席波德莱尔•恩冬•艾拉介绍了高级别小组讨论会，并解释说讨论会源于人权理事会2013年3月通过的一项决议。决议认识到各国就死刑问题召开全国辩论并召集该高级别会议的重要性，以就废除死刑和落实死刑暂缓机制方面的进展和障碍交换意见。

主旨发言

联合国秘书长潘基文在视频讲话中表示，自大会2007年呼吁全球建立死刑暂缓机制这一里程碑事件后，反对死刑的潮流已变得更加强劲。它的影响波及所有区域、所有法律系统、传统和宗教。大约160个国家已经废除或不再使用死刑。剥夺生命是不可挽回的，因此每个人都不应夺走他人生命。即便是在允许死刑的国家，也有太多人在其罪行受到合理质疑的情况下、或是在太过匆忙而未能遵守正当程序国际标准的情况下被判处死刑。

国际社会必须继续强烈申明死刑是不公正且违背基本人权的。秘书长呼吁尚未批准旨在废除死刑的《公民权利和政治权利国际公约》第二项任择议定书的各国批准该文书。他最后希望，能在纽约开展条约活动纪念议定书诞生二十五周年之际看到更多文书得到批准。各国必须尽最大努力，终结这种残酷而不人道的做法。

联合国人权事务高级专员纳维·皮莱表示，作为联合国人权事务高级专员，她反对在所有情况下使用死刑，并对秘书长表示支持，敦促所有保留死刑的国家迅速推动死刑的废除。目前世界上有大约160个国家已经废除死刑、引入暂缓机制或不再使用死刑。高级专员在欢迎这些进展的同时，也深为痛惜地表示，仍有大约20个国家在执行死刑，这通常直接违背了国际人权标准。为什么要把普遍废除死刑作为目标？首先，死刑与生命权为首的人权无法调和。另外面临风险的还有免受酷刑和其他残忍、不人道或有辱人格待遇的权利。实施死刑暂缓机制或废除死刑的各国之所以这样做，是因为认识到死刑在本质上和实际应用中都是残忍、不人道或有辱人格的。经验显示，在实际执行死刑的做法中，从来无法保证能够谨慎地遵守禁止酷刑和残忍、不人道或有辱人格待遇的规定。

第二个废除死刑的理由是死刑的终结性。即便是最为发达、运转良好而稳固的法律系统或是拥有多重司法保障的法律系统，它们也多次将后来被证明无辜者处以死刑。第三个废除死刑的有力依据是，并没有一致的说法表明死刑有威慑作用。并无证据显示死刑对犯罪的震慑作用超过其他形式的惩罚。废除死刑是漫长且通常十分痛苦的过程，除非经历一段艰难甚至措辞激烈的国家辩论，否则很难产生结果。为了确保辩论有效、透明且对集体意志有充分的反思，至关重要的一点是为公众提供平衡的信息和准确的数据，这应该涵盖犯罪问题争论的各个方面，并描述在不使用死刑的情况下对抗犯罪的一切有效方法。所有保留死刑的国家应该首先引入暂缓机制。理事会坚决呼吁继续讨论和推进普遍废除死刑，并在相关问题的对话中与各国和其他利益攸关方开展交流。废除死刑毫无疑问能够增强全人类的权利，这首先从最为神圣的生命权开始。

法国驻联合国日内瓦办事处常驻代表兼讨论主持人尼古拉斯·尼姆奇诺表示，众所周知，死刑是一个人权问题，他很高兴再次看到其进入理事会议程。死刑不仅是正义问题，而是歪曲正义的问题。如果人类正义包含屠杀，那么它就是不正义的。死刑不仅仅是犯罪政策的挑战。它曾经是、也将永远是一种人权侵犯。这是个特别复杂的问题。它是一场长期斗争，但也是一项全球事业，没有什么能够阻挡。如果具体来看，各大洲有越来越多人真正意识到这个问题，同时也必须加倍努力来打赢这场战争。废除死刑是一个远大的目标，同时也是一个公平而可以实现的目标。

小组成员的声明

贝宁司法与人权部部长瓦伦丁·杰诺丁·阿戈苏回顾说，人人有固有的生命权，这项权利不应遭到任何的剥夺。贝宁批准了《公民权利和政治权利国际公约》和其他相关文书，例如有关儿童免遭酷刑权利的文书；贝宁的宪法规定，人是神圣的。杰诺丁·阿戈苏先生回顾了死刑的国际背景，并注意到大会已经通过了多项决议呼吁暂缓执行死刑。2008年11月，非洲人权委员会通过了一项决议，提醒《非洲人权和人民权利宪章》各缔约国支持该暂缓机制。2011年8月，贝宁国民大会压倒性地投票赞成废除死刑。杰诺丁·阿戈苏先生请各国致力于废除死刑，并注意到死刑并不构成消除犯罪的切实方案，不符合生命权，并在司法错误方面存在不可接受的风险。

摩洛哥议会副议长哈蒂嘉•鲁伊西说，中东和北非地区的19个国家中只有5个存在实际的暂缓机制，这意味着有很多人仍面临着死刑，该地区也是人均死刑比例最高的地点。自1993年起，摩洛哥就不再使用死刑，并且建立了一个公平与和解机构，从而为近些年的人权侵犯现象提供思路。2011年通过的宪法载入了生命权，并把人权放在重要位置。摩洛哥的反死刑议员网络提出了废除死刑的立法提案，并将继续致力于在摩洛哥通过《公民权利和政治权利国际公约》第二任择议定书和罗马规约。鲁伊西女士强调，伊斯兰教并非原教旨宗教，她提到有必要超出教条和部落思维，从而服务于理性和平等。死刑是对生命权最为制度化的攻击，因此将其废除是所有重大刑法改革的前奏。

美国无罪见证组织宣传主任柯克·布鲁沃斯表示，美国的死刑系统是无效且错误的，不能发挥作用，他对此有切身的了解。布鲁沃斯先生表示，他是美国国内首个通过DNA检验被免除死刑的人。因为子虚乌有的犯罪，他在狱中呆了8年10个月零19天，其中有两年在死囚房度过。他被指杀害一名9岁的小女孩。马里兰州所有人都认为他有罪。五个人指认其为凶手。两名陪审员表示他们抓到了凶手。最后，他们每个人都彻底犯了错。过去20年里，他与马里兰州抗争，该州去年废除死刑。这是应该发生，也是可以发生的。死刑并不适合这个世界。地球各个角落已有太多的死亡、痛苦和折磨。既然他有如此遭遇，这类状况也会发生在全世界任何人身上。他吁请理事会和全世界人民不要再让死刑发生。

国际反死刑委员会专员阿斯玛·贾汉吉尔说，亚洲对死刑废除运动构成挑战，而近年来大多数亚洲国家已停止使用死刑。绝大多数死刑都是在亚洲执行的，目前有数千人被判处死刑，但也存在一线希望。亚洲的柬埔寨、菲律宾、不丹、尼泊尔和东帝汶等国已经对所有罪行废除死刑。蒙古、大韩民国、泰国、文莱达鲁萨兰国、老挝人民民主共和国、缅甸、斯里兰卡和马尔代夫已有几年不曾执行死刑。但是亚洲地区的死刑状况依然充满挑战，令人关切。亚洲乃至全世界所有人需要汇聚努力，使亚洲成为一个不存在死刑的大洲。若要向前进步，就应鼓励更多亚洲国家采取旨在废除死刑的暂缓机制，并同时增强刑法系统，使之有能力应对有罪不罚，而不是通过执行死刑解决问题。 

互动讨论

Namibia said the death penalty violated the right to life which was the basis of all rights and undermined human dignity which was inherent to all human beings, and asked the panellists about the possibilities of outlawing the death penalty internationally. The abolition of the death penalty contributed to progressive strengthening of human rights everywhere, said Brazil (on behalf of Community of Portuguese-Speaking Countries), and stressed that building a society free from the death penalty should be at the core of all actions. In Sudan the death penalty could only be imposed for the most serious crimes and Sudan stressed that the implementation of human rights principles must take into consideration cultural and societal characteristics of the people for them to be truly universal.

Mongolia said it had declared a moratorium on the death penalty in 2010, followed by the adhesion to the Second Optional Protocol to the International Covenant on Civil and Political Rights. Mongolia was currently working on amendments to abolish the death penalty both in law and practice. Sierra Leone was committed to addressing the question of the death penalty and had organised a conference in Freetown on this issue. There had been a moratorium in Sierra Leone since 1998. Abolition was the final goal, and would be addressed in the current review of the Constitution. Saudi Arabia said that Sharia Law guaranteed justice and rights for all, including the right to life. The appeals to abolish the death penalty should not forget the rights of victims. The death penalty was a matter to be dealt with by each country in accordance with domestic legislation.

Singapore, speaking on behalf of a group of 26 like-minded countries, said that the death penalty had to be viewed though a broader perspective and weighed against the rights of the victims and national security. Every State had the sovereign and inalienable right to choose its own legal system without interference from foreign countries. Switzerland, speaking on behalf of a group of 44 countries, said they were convinced that the death penalty was an affront to human dignity and opposed its use in any circumstances. The Council of Europe and the European Convention on Human Rights had acted as a catalyst for this regional trend. Capital punishment was abolished as a result of debates and exchanges of ideas and resulted from slow changes of mentalities.

Kuwait, speaking on behalf of the Gulf Cooperation Council, said that the question of capital punishment was a sensitive issue since countries had different opinions because of cultural and intellectual frameworks and because of the absence of international agreement on the issue. As long as the application of the death penalty complied with the relevant international instruments, this question was inherent to States’ rights to choose their criminal law and national sovereignty. The European Union reiterated that there was no evidence in support of the death penalty’s effectiveness in preventing crime and expressed concerns about countries that had resumed executions or that were executing large numbers of prisoners and reiterated support for abolition. Ireland said a de facto moratorium had been in place since 1954 and stressed the view that capital punishment was not needed, reiterating its support for the establishment of a moratorium and abolition. Ireland asked panellists how to best achieve this. New Zealand opposed the use of death penalty in all cases and under all circumstances, sharing a number of the concerns of the panellists, among others, concerning its negative effects and irreversibility.

Penal Reform International said that conditions of death row were inhuman and degrading and expressed concerns about the conditions often experienced by prisoners on death row. Conditions should be based on individual risk assessments, commuting of sentences before the time of abolition and ensuring compliance with international standards. Amnesty International referred to some recent developments towards abolition and highlighted the potential value of establishing a moratorium, noting that this could only be a first step; guarantees that executions would not be resumed were also important. International Harm Reduction Association highlighted human rights violations associated with drug enforcement operations and noted that United Nations’ assistance has reportedly contributed to the arrest and sentencing to death of drug traffickers and, despite calls for attention, no responses had been undertaken. International Harm Reduction Association called for funding to be redirected and freezing financial support pending investigation.

KIRK BLOODSWORTH, Director of Advocacy of Witness to Innocence, said that it did not hurt a country not to have the death penalty. What did hurt a country was the killing of innocents. Children could not be dealt with like adults, and juvenile death penalty was a barbaric practice. States in America that still used the death penalty were the States with the most criminality.

KHADIJA ROUISSI, Vice-President of the National Parliament of Morocco, said that the international community had a responsibility to stop this form of torture and other cruel or inhuman treatment. The abolition of slavery, when it happened, was a really hard decision as well. But today no one would think about opposing it. Justifying the use of the death penalty by religious belief was based on misinterpretations of religions and was wrong.

ASMA JAHANGIR, Commissioner, International Commission against the Death Penalty, said better campaigns were needed, with more testimonies of people who had suffered, families that had suffered, and of people that had witnessed how innocent people had been put to the gallows. Contradictions also had to be pointed out. It was important to understand that it was justice that they were talking about rather than revenge. There were other forms of punishment other than death that could be given, and justice would be secured. The myths had to be looked at. Some crimes that carried the death penalty were no longer considered crimes now. There was a debate on whether in situations of terrorism the death penalty should be imposed. In a situation of heated atmosphere, it was far more dangerous to have the extreme punishment of the death penalty.

VALENTIN DJENONTIN-AGOSSOU, Minister of Justice and Human Rights of Benin, said concerning what should be done at the national level to condemn the death penalty as illegal, the international community had to intensify the campaign to sensitize everyone at every level, to sensitize all actors, so that countries could vote on a universal moratorium. When that vote was accomplished, countries could move on to de facto abolition of the death penalty and enshrine it in law. Mr. Djenontin-Agossou noted that, in Benin, commuting the death penalty to life imprisonment was taking place.

Slovenia said it opposed the death penalty under any circumstances; this practice had no positive impact on reducing criminality. Slovenia regretted that juvenile executions, or executions carried out inhumanly, still occurred. Civil society and regional organizations played an important role in promoting the abolition of the death penalty. Belgium said that the global trend toward abolition was undeniable. The establishment of a moratorium was a first step that should lead to the full abolition de jure. Belgium’s last execution during peace time occurred in the nineteenth century. The Council of Europe called on all countries to put an end to the death penalty. Europe was a death penalty free area, and only one Council of Europe Member State had not abolished the death penalty in law. Vigilance was nevertheless required, since some political parties even in Europe had put the restoration of the death penalty on their programmes. Indonesia believed that this issue had to be approached carefully and all should avoid naming and shaming. There were ongoing active debates in Indonesia on the use of the death penalty. Indonesia made sure that strong guarantees were attached to the use of the death penalty, in accordance with international law.

Morocco said it was a de facto abolitionist country and had engaged a fruitful national dialogue on whether or not to maintain this sentence in domestic legislation. Morocco had adopted a transparency policy regarding the death penalty. Finally, Morocco was committed to continue the debates on this issue. Italy emphasised the deep link between the death penalty and human rights. Public opinion unfortunately was too often deprived of objective and transparent information on the issue and the effects of capital punishment. The State did not need to take lives in order to defend itself. Switzerland believed that the death penalty could be completely abolished by the year 2025. How could countries lacking political courage abolish the death penalty? Maintaining the death penalty did not reduce the criminality rates, Switzerland said. Finally, the death penalty was not compatible with human rights, and too often targeted the most vulnerable groups of a society.

France said that universal abolition of the death penalty was one of France’s main priorities in the area of human rights. Unfortunately, some setbacks had been seen, with moratoria that had been in place being broken. Mexico reiterated its rejection of the imposition of the death penalty which was still common practice in many parts of the world, in violation of the most important human right of all, the right to life, and was very concerned about information of the use of unregulated substances in the formulae of lethal injections. Austria said that it wanted the death penalty abolished worldwide and called for a global moratorium on executions. The margin of error in the application of the death penalty was too big and there was no compelling evidence that executions were deterrents. Australia welcomed developments noted in the Secretary-General’s recent report, but was concerned that some States had reintroduced the death penalty, or resumed executions, or expanded the range of categories crimes to which the death penalty could apply.

Egypt said that it was of the view that seeking to produce positive results on the death penalty required repositioning of the debate and placing it on its appropriate platform, and that it remained in the scope of criminal justice. China said that there was no international consensus on the death penalty. The retention of the death penalty in China was a prudent choice made in accordance with international conventions and the people’s demand for justice, and was applied with a policy of strict control of application. Rwanda said that the abolition of the death penalty in Rwanda was not easy. However, the decision had not been regretted and it had been a step forward in the process of reconciliation in Rwanda. Spain said that a sentence to death led all to think about many human rights issues. Abolishing the death penalty was a challenge, not an insurmountable one, but one that could be overcome through constructive debate such as this one.

International Federation of Human Rights Leagues welcomed the continued global trend towards the abolition of the death penalty. However many challenges remained and a lack of data was a serious impediment to serious debate. Verein Sudwind Entwicklungspolitik was concerned about the increasing executions in Iran, where children watched public executions alongside adults and in many proceedings the rule of law was infringed. International Organization for the Elimination of All Forms of Racial Discrimination noted that of the use of the death penalty had significantly decreased. However some countries still favoured the counter-trend and it was crucial that the international community continue to undertake all possible efforts to protect the inherent right to life, to which there was no derogation.

KIRK BLOODSWORTH, Director of Advocacy, Witness to Innocence, said that when this happened to him, he realised that it could happen to everyone. The death penalty had to be abolished, in the name of all those who had been wrongly executed.

KHADIJA ROUISSI, Vice-President of the National Parliament of Morocco, welcomed that Senegal had abolished the death penalty, and called on all other Muslim countries to do so. It was impossible to have full guarantees in the administration of justice to ensure that nobody be wrongly sentenced.

ASMA JAHANGIR, Commissioner, International Commission against the death penalty and a former Special Rapporteur on extrajudicial, summary and arbitrary executions, said that this dialogue must be continued because there was a gap in opinions of people; some saw it as a human rights problem and others as a criminal justice problem. Transparency was very important and there were countries where it was unknown how many were executed and for which crimes. It was important that States were convinced about the abolition of the death penalty and had the political will to abolish it, before convincing political parties, civil society and the public. What needed to be done immediately was to stop the execution of children.

VALENTIN DJENONTIN-AGOSSOU, Minister of Justice and Human Rights of Benin, thought that positive changes would be seen in the acts of Parliaments and it was important that they worked hand-in-hand with governments and members of civil society in abolishing the death penalty.

NICOLAS NIEMTCHINOW, Permanent Representative of France to the United Nations Office at Geneva, Moderator, in concluding remarks thanked the panellists for their thought-provoking statements, in this serene dialogue with constructive and active contributions. Lessons learned included that the path to the abolition of the death penalty was a long but ongoing one, and universal abolition was more than ever within reach. The specific ways of going about it would vary. What was clear was that no barrier was truly insurmountable, including public opinion. A transparent debate between States was needed, in close conjunction with civil society.

BAUDELAIRE NDONG ELLA, President of the Human Rights Council, thanked the moderator, panel members and all participants for their contributions to the debate. The Council would meet tomorrow morning at 10 a.m., to continue the High-level Segment, followed by the general segment, and an interactive dialogue with the High Commissioner.

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For use of the information media; not an official record