A/HRC/4/20
page 32
changed but because the jurisprudence on human rights and constitutional adjudication was
unfamiliar and, by some courts, resisted.” Bowe v. The Queen, Privy Council Appeal No. 44
of 2005 (8 March 2006) (appeal from the Court of Appeal of the Bahamas), para. 42.
137
The Special Rapporteur has, for example, engaged in dialogue with several Governments on
the universal significance of the jurisprudence of the Judicial Committee of the Privy Council.
E/CN.4/2006/53/Add.1, pp. 34-36, 199-206, 247-249.
138
ICCPR, art. 6(4).
139
ICCPR, art. 6(1).
140
ICCPR, art. 7. Note that insofar as a violation of Article 7 results in the deprivation of life it
also constitutes a violation of Article 6. See ICCPR, art. 6(2): “sentence of death may be
imposed only … not contrary to the provisions of the present Covenant”.
141
See also E/CN.4/2006/53/Add.1, 232-242.
142
ICCPR, art. 14(5): “Everyone convicted of a crime shall have the right to his conviction and
sentence being reviewed by a higher tribunal according to law.”
143
The relevance of a range of factors has been noted by judicial and quasi-judicial bodies.
See, e.g., Thompson v. Saint Vincent and the Grenadines, Communication No. 806/1998 (2000),
para. 8 (“defendant’s personal circumstances” and the “circumstances of the particular
offence”); Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago, Series C, No. 94
(21 June 2002), para. 87 (“prior criminal record of the offender”, “the subjective factors that
could have motivated his conduct”, “the degree of his participation in the criminal act”, “the
probability that the offender could be reformed and socially readapted”, “whether the death
penalty is the appropriate punishment or not for the specific case in light of the circumstances of
the offender’s conduct”).
144
While this explanation of the reasoning behind these cases is somewhat stylized, it clarifies
far more than it obscures.
145
ICCPR, art. 6(2).
146
Lubuto v. Zambia, Communication No. 390/1990 (1995), para. 7.2.
147
The distinction between evaluating general legislation and individual sentences under human
rights law can also be understood as an example of the difference between “macro-policy at the
central level” and the “micro-policy of specific law enforcement bodies”. See Liu Renwen,
“Strict Restriction on Death Penalty and its Paths in China” in The Road to the Abolition of the
Death Penalty in China: Regarding the Abolition of the Non-Violent Crime at the Present Stage
(Press of Chinese People’s Public Security University of China, 2004).
148
Thompson v. Saint Vincent and the Grenadines, Communication No. 806/1998 (2000),
para. 8.2.
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