A/HRC/8/3
page 23
66. Similarly, the Special Rapporteur has encountered situations in which the Government has
considered a clemency application solely on the basis of a written report by the trial judge rather
than on submissions by the condemned person.84 Reliance on a report from the trial judge
reflects an unduly limited understanding of the reasons that pardon and commutation should
sometimes be granted. Evidentiary and procedural rules mean that certain considerations central
to matters of mercy are marginalized or even excluded in the trial and appellate process. For
example, commutation may be thought to be warranted because a murder was triggered by
events that make it relatively understandable even if they do not suffice to excuse criminal
liability, because a society’s attitudes towards the death penalty have changed since trial, because
exonerating evidence has arisen, or because a prisoner, though guilty of murder, has been
successfully rehabilitated on death row. A trial judge’s report on a case will not speak to these
and other reasons that might move a Government to show mercy. Indeed, sometimes the
circumstance that might suggest the desirability of pardon does not even come to pass until after
the trial has finished. The safest guarantee that the possibility of pardon or commutation will
achieve their goals is for the condemned person to have the opportunity to invoke any personal
circumstances or other considerations that might appear relevant to him or her.
67. In conclusion, both law and practice demand that the “right to seek pardon or
commutation” be accompanied by essential procedural guarantees if it is not to be turned into a
meaningless formality that does little or nothing to further the purposes for which the right was
recognized. Those procedural guarantees include the right of the condemned person to
affirmatively request pardon or commutation; to make representations in support of this request
referring to whatever considerations which might appear relevant to him or her; to be informed
in advance of when that request will be considered; and to be informed promptly of whatever
decision is reached.
C. Prisoners running prisons
68. “There’s a small group that’s in charge within the prison; they beat people; they order
killings; they control the drug trafficking.”85 While this comment was made over a decade ago
by a female prisoner in Brazil, it is a phenomenon that is common today in many prisons around
the world, in both developed and developing countries.86 It is also a problem that the Special
Rapporteur has encountered first-hand in several country visits. Because extrajudicial killings
frequently occur in such circumstances, it is an issue which demands the attention of the Council.
69. From the perspective of the authorities, the logic of handing the control of prisons to gangs
is not difficult to understand. The gangs are close to the ground, well informed and provide their
84
See, e.g., E/CN.4/2006/53/Add.1, pages 232-242.
85
Human Rights Watch, Behind Bars in Brazil (1998), at www.hrw.org/reports98/brazil/
Brazil-12.htm.
86
See e.g. in relation to the United States, Christian Parenti, Lockdown America (1999); and
Gerald G. Gaes et al., “The Influence of Prison Gang Affiliation on Violence and Other Prison
Misconduct”, 9 March 2001, at www.bop.gov/news/research_projects/published_reports/
cond_envir/oreprcrim_2br.pdf.
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