A/HRC/42/28 A. Presumption of innocence 19. The right to be presumed innocent until proved guilty according to law is enshrined in article 11 (1) of the Universal Declaration of Human Rights and article 14 (2) of the International Covenant on Civil and Political Rights. This right is particularly fundamental in death penalty cases, where errors are irreversible if not detected and remedied prior to implementation of the sentence. The Human Rights Committee recently reiterated the wellestablished principle that failure to respect the presumption of innocence in proceedings resulting in the imposition of the death penalty rendered the sentence arbitrary, and therefore in violation of article 6 of the Covenant.43 The safeguards guaranteeing protection of the rights of those facing the death penalty (para. 4) provide that 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. 20. Particularly where the death penalty is introduced for crimes that were not previously capital offences, or where a State resumes executions, legislation and courts must ensure that appropriate evidentiary standards are scrupulously applied. Inversions of the burden of proof may be especially problematic. In India, article 29 of the Protection of Children from Sexual Offences Act, 2012, reverses the burden of proof for some offences, requiring the court to presume that the accused is guilty unless the contrary is proven. Following recent amendments to the Act, some of those offences now carry the death penalty (see para. 12 above). Similarly, in Pakistan, which ended a seven-year moratorium on capital punishment in late 2014, the Control of Narcotic Substances Act, 2007, which includes the death penalty as a potential punishment for non-violent drug-related crimes (see para. 10 above), provides in its section 29 that a defendant found in possession of narcotics is presumed to have committed an offence unless the contrary is proven. B. Individual circumstances 21. In capital cases, sentencing judges must take into account the particular circumstances of the offence, including any attenuating elements and any relevant personal circumstances.44 In Egypt, an increasing number of trials have taken place in recent years under a law dating from the colonial period that applies concepts of joint enterprise, allowing large numbers of defendants to be held jointly liable for criminal acts committed by one co-defendant.45 The organizations Egyptian Commission for Rights and Freedoms and Reprieve report that between 3 July 2013 and 23 September 2018, mass trials led to 1,884 preliminary death sentences, of which 860 were later confirmed. 46 Special procedure mandate holders have expressed grave concern at mass trials of protestors in Egypt, leading to death sentences of 75 people or more at a time, and have raised concerns over respect for the fair trial guarantees enjoyed by each individual. 47 22. The mandatory application of the death penalty does not allow for consideration of individual circumstances or for judicial discretion. In the view of the Human Rights Committee, that could render an execution arbitrary. 48 In Thailand, a moratorium in place 43 44 45 46 47 48 Ibid., para. 41. Ibid., para. 37. Law 10/1914, commonly known as the Assembly Law. Joint submission of Egyptian Commission for Rights and Freedoms and Reprieve; and Cairo Institute for Human Rights Studies, Toward the Emancipation of Egypt: A Study on Assembly Law 10/1914 (2017). Joint submission of the Egyptian Commission for Rights and Freedoms and Reprieve. See the press release, “Egypt: United Nations experts call for Human Rights Council response to ‘appalling’ verdicts against protesters”, issued jointly on 17 September 2018 by the Special Rapporteur on the situation of human rights defenders, the Special Rapporteur on the rights to freedom of peaceful assembly and of association, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and the Chair-Rapporteur of the Working Group on Arbitrary Detention. General comment No. 36, para. 37. 7