Subject(s) of appeal: 1 male
Character of reply: No response
Observations of the Special Rapporteur The Special Rapporteur regrets that the Government of Saudi Arabia has failed to cooperate with the mandate that he has been given by the General Assembly and the Human Rights Council.
Urgent appeal dated 24 October 2007 I would like to draw the attention of your Government to information I have received regarding Mr. Hadi ‘Ali Suliaman al-Yami, reportedly sentenced to death and at imminent risk of execution.
According to the reports received:
Hadi ‘Ali Suliaman al-Yami, was originally sentenced to 10 years imprisonment for helping a man escape from prison, but his sentence was said to have been changed unexpectedly to death, possibly following a secret appeal process. He is reportedly due for execution today.
It is my view that the death penalty as applied in this case does not fall within the category of the “most serious crimes” for which international law countenances its possible application. It is generally understood that this category should not be defined as going beyond intentional crimes with lethal or extremely grave consequences (paragraph 1 of the Safeguards guaranteeing protection of the rights of those facing the death penalty, Economic and Social Council resolution 1984/50 of 25 May 1084). In interpreting Article 6(2) of the Covenant, however, the Human Rights Committee (HRC) has consistently rejected the imposition of a death sentence for offences that do not result in the loss of life, finding only cases involving murder not to raise concerns under the most serious crimes provision. As I observed in my last report to the Human Rights Council, the conclusion to be drawn from a thorough and systematic review of the jurisprudence of all of the principal United Nations bodies charged with interpreting the most serious crimes provision, is that a death sentence can only be imposed in cases where it can be shown that there was an intention to kill which resulted in the loss of life (A/HRC/4/20, para. 53).
Moreover, I respectfully remind your Excellency that in capital punishment cases the obligation to provide criminal defendants “a fair and public hearing before an independent and impartial tribunal” (Article 10 of the Universal Declaration on Human Rights) allows no derogation.
In light of this review of basic human rights norms recognized by the international community, I would respectfully request Your Excellency’s Government to take all necessary steps to avoid an execution that would be inconsistent with accepted standards of international human rights law. In view of the urgency of the matter, I would appreciate a response on the initial steps taken by your Excellency’s Government, including confirmation that Hadi ‘Ali Suliaman al-Yami is still alive.
It is my responsibility under the mandate provided to me by the Human Rights Council, to seek to clarify all such cases brought to my attention. Since I am expected to report on this case to the Council I would be grateful for your cooperation and your observations. I undertake to ensure that your Government’s response is accurately reflected in the reports I will submit to the Human Rights Council for its consideration.
Saudi Arabia: Death Sentences of Sheikh Mastan alias Mohammed Salim and Hamza Abu Bakir Violation alleged: Non-respect of international standards relating to the imposition of capital punishment
Subject(s) of appeal: 2 males
Character of reply: Cooperative but incomplete response
Observations of the Special Rapporteur The Special Rapporteur appreciates the information provided by the Government of Saudi Arabia regarding the cases of Sheikh Mastan alias Mohammed Salim and Hamza Abu Bakir. However, the SR remains concerned that they have been sentenced to death without having been assisted by legal counsel.
Urgent appeal dated 20 November 2007 I would like to draw the attention of your Government to information I have received regarding two persons, Sheikh Mastan alias Mohammed Salim and Hamza Abu Bakir who have reportedly been sentenced to death and are at imminent risk of execution.
According to the information received:
Sheikh Mastan, alias Mohammed Salim and Hamza Abu Bakir, two Indian nationals, currently detained in al-Dammam Prison, were arrested in January 2004 on charges of drug possession. In June 2006, they were convicted and sentenced to death by a court in al-Dammam. However, it is reported that they were not legally represented and that their conviction and sentence have been upheld on appeal and their execution may be imminent.
While I do not wish to prejudge the accuracy of the allegations regarding this specific case, it is my view that the death penalty as applied in this case does not fall within the category of the “most serious crimes” for which international law countenances its possible application. It is generally understood that this category should not be defined as going beyond intentional crimes with lethal or extremely grave consequences (paragraph 1 of the Safeguards guaranteeing protection of the rights of those facing the death penalty, Economic and Social Council resolution 1984/50 of 25 May 1084). In interpreting Article 6(2) of the Covenant, however, the Human Rights Committee (HRC) has consistently rejected the imposition of a death sentence for offences that do not result in the loss of life, finding only cases involving murder not to raise concerns under the most serious crimes provision. As I observed in my last report to the Human Rights Council, the conclusion to be drawn from a thorough and systematic review of the jurisprudence of all of the principal United Nations bodies charged with interpreting the most serious crimes provision, is that a death sentence can only be imposed in cases where it can be shown that there was an intention to kill which resulted in the loss of life (A/HRC/4/20, para. 53).
Moreover, I respectfully remind your Excellency that in capital punishment cases the obligation to provide criminal defendants “a fair and public hearing before an independent and impartial tribunal” (Article 10 of the Universal Declaration on Human Rights) allows no derogation. A central element of the right to a fair hearing is the right to be assisted by legal counsel. In this respect, I would also like to refer Your Excellency's Government to the Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. Principle 6 is particularly pertinent to the present case: “Any such persons [charged with a criminal offence] who do not have a lawyer shall, in all cases in which the interests of justice so require, be entitled to have a lawyer of experience and competence commensurate with the nature of the offence assigned to them in order to provide effective legal assistance, without payment by them if they lack sufficient means to pay for such services.”
On this basis, I urge your Excellency’s Government to expeditiously set aside the death sentence imposed on Sheikh Mastan and Hamza Abu Bakir and provide them with effective legal counsel in view of a renewed trial, free of charge if they lack means of their own.
It is my responsibility under the mandate provided to me by the Commission on Human Rights and extended by the Human Rights Council, to seek to clarify all cases brought to my attention. Since I am expected to report on these cases to the Human Rights Council, I would be grateful for your cooperation and your observations on the following matters:
1. Are the facts alleged above accurate? If not, please provide information and documents proving their inaccuracy.
2. If the above facts are accurate, please provide details of any further developments in this case.
Given the urgency of the matter, I would appreciate an expeditious response on the initial steps taken by your Excellency’s Government to safeguard the rights of Sheikh Mastan and Hamza Abu Bakir.
Response from the Government of Saudi Arabia dated 20 February 2008 In this regard, the competent authorities in the Kingdom of Saudi Arabia have indicated that the case involving the two above-mentioned persons was referred by tbe Public Investigation and Prosecution Department to the General Court in Danunam and registered by that Court under No. 3311/25 on 24/2/1425 AH, conesponding to 14 April 2004.
Hamza Abu Bakir was arrested at King Fahd Airport in Dammam when he arrived from India carrying a fake passport. Customs offcers searched his suitcase, which was found to contain two packets of a brownish powder weighing 2.4 kg. The chemical laboratory report No. 2571 K.SH positively identified the sample as being the narcotic heroin. He stated that he had received it from a person in lndia who had requested him to deliver it to Sheikh Mastan in Riyadh, to whom it was actually delivered. When Mastan's office was searched, it was found to contain various narcotic substances weighing a total of 241.5 grams, as well as 12,411 headache-treatment tables which are usually added to the heroin substance to increase its weight. The case, which was heard in the presence of sworn interpreters, ended with the conviction of the first defendant (Hamza Abu Bakir) on the charge of smuggling the narcotic heroin and the conviction of the second defendant (Sheikh Mastan) on the charge of receiving heroin. They were both sentenced to the discretionary penalty of death. Their sentences, after being subjected to a thorough review in accordance with due process of law and the statutory judicial procedures, were upheld by both the Court of Cassation and the Supreme Council of the Judiciary, after which the case file was referred to the competent authority.
Singapore: Death Sentences of Iwuchukwu Amara Tochiand Okele Nelson Malachy Violation alleged: Non-respect of international standards relating to the imposition of capital punishment
Subject(s) of appeal: 2 males
Character of reply: Allegation rejected without adequate substantiation
Observations of the Special Rapporteur The Special Rapporteur notes the legal interpretations asserted by the Government of Singapore and appreciates the information provided.
Urgent appeal dated 21 January 2007 I would like to draw the attention of Your Excellency’s Government to the cases of Mr. Iwuchukwu Amara Tochi, a Nigerian citizen, and Mr. Okele Nelson Malachy, a South African citizen. Mr Tochi was reportedly arrested on 27 November 2004 after his bag was found to contain 100 capsules of diamorphine (heroin). According to the information received:
Mr Torchi was convicted at trial of importing more than 15 grammes of diamorphine (heroin) into Singapore and given the death sentence, which is mandatory for that offence. On 16 March 2006, the Court of Appeal upheld his conviction. His clemency appeal has reportedly been rejected by the President. During his trial and appeal, the principal issue was whether he had the requisite knowledge that the capsules he was carrying contained diamorphine. Under Singapore law such knowledge may be presumed, subject to rebuttal, under Section 18 of the Misuse of Drugs Act:
Any person who is proved to have had in his possession or custody or under his control . . . anything containing a controlled drug . . . shall, until the contrary is proved, be presumed to have had that drug in his possession. . . . Any person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of that drug.
The trial judge appears to have accepted that Mr Tochi might not have realized that the capsules he was carrying contained diamorphine (heroin). The judgment of the trial court stated:
There was no direct evidence that he knew the capsules contained diamorphine. There was nothing to suggest that Smith had told him they contained diamorphine, or that he had found that out on his own. . . . [E]ven if he may not have actual knowledge that he was carrying diamorphine, his ignorance did not exculpate him because it is well established that ignorance is a defence only when there is no reason for suspicion and no right and opportunity of examination. ( SGHC 233)
The appeal court rejected the trial court’s conclusion that actual knowledge was legally immaterial, holding that a failure to inspect was only a basis for upholding the presumption of knowledge. Despite the appeal court’s insistence that actual knowledge was an element of the crime with which Mr Tochi had been convicted, it nevertheless upheld the trial court’s conviction. The appeal court reasoned:
Rebutting the statutory presumption is a matter of fact, and is no different from any other fact-finding exercise save that the law requires that a person rebutting a statutory presumption does so on a balance of probabilities. It is not sufficient for him merely to raise a reasonable doubt. . . . It was sufficiently clear to us, from the trial judge’s grounds of decision, that the court did not believe the explanation of [Tochi], and was thus not persuaded that he had rebutted the statutory presumption. ( 2 SLR 503)
With respect to Mr Malachy, the trial court found that “beyond a reasonable doubt . . . there was an arrangement between Smith and [Tochi and Malachy] for [Malachy] to come to Singapore to collect the capsules from [Tochi]”. Mr Malachy was convicted of having abetted Mr Tochi’s offence and was also sentenced to death. It is my understanding that no date has been set for the execution of Mr Malachy but that Mr Tochi is scheduled to be executed by hanging on 26 January 2007.
I recall the extensive prior correspondence on the subject of the mandatory death penalty between myself and the Your Excellency’s Government. I am aware of the view of the Government that “the death penalty is primarily a criminal justice issue, and therefore is a question for the sovereign jurisdiction of each country”. However, the organs of the United Nations concerned with human rights, including the General Assembly, the Economic and Social Council, and the Human Rights Council (together with its predecessor body), have insisted that respect for those safeguards required to protect the human rights of persons facing the death penalty is indeed a matter of international concern. (See, e.g., GA Res. 61/173 (2006), para. 4.) In particular, it has long been understood that, as the first Special Rapporteur on extrajudicial, summary or arbitrary executions stated in 1985, the Safeguards guaranteeing protection of the rights of those facing the death penalty adopted by the Economic and Social Council would “serve as criteria for ascertaining whether an execution is of a summary or arbitrary nature” (E/CN.4/1985/17, para. 24).
With that in mind, there are three key issues that I wish to bring to the attention of Your Excellency’s Government.
The limitation of the death penalty to the “most serious crimes”. Pursuant to the Safeguards, “In countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences.” I would note that an individual cannot plausibly be considered to have committed an intentional crime if he was unaware even of the facts constituting that crime. I would also note that even successful drug trafficking has consistently been held by the Human Rights Committee, as well as by the Special Rapporteur, to fall short of the “most serious crimes” threshold. (See, e.g, A/50/40 (1995), para. 35 [HRC]; A/55/40 (2000), para. 13 [HRC]; A/51/457 (1996), para. 107 [SR].) Under international human rights law, the crimes for which Mr Tochi and Mr Malachy were convicted, while serious, cannot be considered among the “most serious crimes” for which the death penalty may be imposed.
The prohibition of the mandatory death penalty. Laws imposing mandatory death sentences, such as the Misuse of Drugs Act, have been shown to unavoidably violate human rights law. The categorical distinctions that may be drawn between offences in legislation are not sufficient to reflect the full range of factors relevant to determining whether a death sentence would be permissible in a capital case. Respect for the human rights to life and to freedom from cruel, inhuman or degrading punishment recognized in the Universal Declaration of Human Rights is impossible to ensure without permitting the judiciary to evaluate whether the death penalty would be permissible in each particular case. In this regard, I find the conclusions of the Indian Supreme Court particularly persuasive. While that court’s analysis pertains to the provisions of the Constitution of India, it is no less relevant to our understanding of the provisions of international human rights law:
It has to be remembered that the measure of punishment for an offence is not afforded by the label which that offence bears, as for example ‘Theft’, ‘Breach of Trust’ or ‘Murder’. The gravity of the offence furnishes the guideline for punishment and one cannot determine how grave the offence is without having regard to the circumstances in which it was committed, its motivation and its repercussions. The legislature cannot make relevant circumstances irrelevant, deprive courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death. . . . A standardized mandatory sentence, and that too in the form of a sentence of death, fails to take into account the facts and circumstances of each particular case. It is those facts and circumstances which constitute a safe guideline for determining the question of sentence in each individual case. The infinite variety of cases and facets to each would make general standards either meaningless ‘boiler plate’ or a statement of the obvious. . . . The task performed by the legislature while enacting [mandatory death penalty legislation] is beyond even the present human ability. . . . (Mithu v. State of Pubjab, 2 S.C.R. 690, 704, 707–708 (1983) (internal citations and quotation marks omitted).)
As I have noted in earlier correspondence, similar conclusions have been reached by numerous human rights bodies, including the UN Human Rights Committee, the Inter-American Commission and Court of Human Rights, and the Judicial Committee of the Privy Council. In addition, I might note that the Commission on Human Rights has “urge[d] all States that still maintain the death penalty . . . [t]o ensure . . . that the death penalty is not imposed . . . as a mandatory sentence.” (CHR Res. 2005/59, para. 7(f).) Ultimately, it is impossible to avoid the conclusion of the Supreme Court of India that “law ceases to have respect and relevance when it compels the dispensers of justice to deliver blind verdicts by decreeing that no matter what the circumstances of the crime, the criminal shall be hanged by the neck until he is dead.” (Mithu v. State of Pubjab, 2 S.C.R. 690, 704 (1983).)
The presumption of innocence. Article 11 of the Universal Declaration of Human Rights recognizes as a fundamental human right that, “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” According to the Safeguards guaranteeing protection of the rights of those facing the death penalty, “Capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts.” In the present case, the trial court convicted Mr Tochi and Mr Malachy and sentenced them to death despite finding that there was room for an alternative explanation of the facts. The appeals court accepted the factual findings of the trial court, but upheld the convictions and sentences by shifting the burden of proof to the defendants.
In light of this review of basic human rights norms recognized by the international community, I would respectfully request Your Excellency’s Government to take all necessary steps to avoid executions that would be inconsistent with accepted standards of international human rights law.
Response from the Government of Singapore dated 7 March 2007 The Singapore Govemment does not consider the question of the death penalty in Singapore, and the case of Mr Iwuchukwu Amara Tochi and Mr Okele Nelson Malachy specifically, as falling within the ambit of the office of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. Mr Tochi and Mr Malachy were convicted and sentenced in a court of law where due process and safeguards were followed. They had access to and were represented by legal counsel throughout the legal proceedings.
The integrity and transparency of Singapore's legal system is well-known. All pensons before the law are ensured of the safeguards enshrined under the Constitution and due process of the law. This standard is upheld in all cases before the Singapore Courts, as it was in the case involving Mr Tochi and Mr Malachy. All judicial decisions and appeals involving capital cases are written and open to public scrutiny.
Singapore fully subscribes to the principle that it is a fundamental human right to be presumed innocent until proven guilty. Mr Tochi and Mr Malachy were found guilty by a competent court of law only atfer it had considered the totality of the evidence before it.
In the present case, Mr Tochi was convicted and sentenced only after the High Court had concluded that the Prosecution had proved its case against him beyond a reasonable doubt. It was not disputed that Mr Tochi was in possession of the bag containing the capsules of diamorphine. His defence was that he did not know that the capsules contained diamorphine. Under the law, Mr Tochi needed only to show on a balance of probabilities (not beyond reasonable doubt) that he did not know he was carrying drugs. After carefully considering all the evidence, the trial judge did not believe Mr Tochi. The trial judge found that Mr Tochi's evidence was full of contradictions, and that Mr Tochi had wilfully turned a blind eye to the contents of the capsules because he was tempted by the money which had been offered to him. On appeal, the Court of Appeal upheld the decision of the trial judge and concluded that the Prosecution had proved its case against Mr Tochi beyond a reasonable doubt.
Your assertion in paragraph 9 that Singapore's laws making the death penalty mandatory for drug trafficking are inconsistent with international human rights standards is not correct. There is no international consensus for or against capital punishment imposed according to due process of the law. Key international instruments that apply to countries with wide divergence in cultures and values do not proscribe the use of the death penalty in their texts. The issue of capital punishment is a question that every State has the sovereign right, under international law, to decide, taking into account its own circumstances.
Similarly, there is neither international consensus nor custormary international law on what constitutes the most serious crimes for which the sentence ouf death may be imposed. Your assertion that "the crimes for which Mr Tochi and Mr Malachy were convicted, while serious, cannot be considered among the "most serious crimes" for which the death penalty may be imposed" reflects your personal views rather than accepted international human rights law.
The Singapore Government recognises that the death penalty is a severe penalty. Capital punishment is imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime. The Singapore Government considers drug trafficking to be one of the most serious offenses which warrants the imposition of the death penalty. As a small country located near the Golden Triangle, Singapore is particularly vulnerable to the threat of drug traff cking. As such, the Singapore Government has taken a firm and consistent stand against drug offenses, whether they involve Singaporeans or foreigners. The death penalty plays a key role in deterring organised drug syndicates front conducting their criminal activities in or through Singapore, and keeps the local drug situation under control. The Singapore Govemment has a responsibility to protect the interests and welfare of Singaporeans and those living in Singapore, and cannot allow the actions of an individual or a few individuals to harm the larger interests of society.
Capital punishment cases in Singapore are conducted with due process and judicial safeguards. Your continued attempts to link the death penalty cases in Singapore with extrajudicial, summary and arbitrary executions reveal your personal biases against the death penalty. It is regrettable that the credibility and objectivity of the office of the Special Rapporteur is being undermined by personal agendas, and in the process detracting attention from the intended mandate of the office for extrajudicial, summary and arbitrary executions.