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1. The author of the
communication is Charles Chitat Ng, a British subject, born on 24 December
1960 in Hong Kong, and a resident of the United States of America, at the
time of his submission detained in a penitentiary in Alberta, Canada, and on
26 September 1991 extradited to the United States. He claims to be a victim
of a violation of his human rights by Canada because of his extradition. He
is represented by counsel.
2.1 The author was arrested, charged and convicted in 1985 in Calgary,
Alberta, following an attempted store theft and shooting of a security
guard. In February 1987, the United States formally requested the author's
extradition to stand trial in California on 19 criminal counts, including
kidnapping and 12 murders, committed in 1984 and 1985. If convicted, the
author could face the death penalty.
2.2 In November 1988, a judge of the Alberta Court of Queen's Bench ordered
the author's extradition. In February 1989, the author's habeas corpus
application was denied, and on 31 August 1989 the Supreme Court of Canada
refused the author leave to appeal.
2.3 Article 6 of the Extradition Treaty between Canada and the United States
provides:
"When the offence for which extradition is requested is punishable by death
under the laws of the requesting State and the laws of the requested State
do not permit such punishment for that offence, extradition may be refused,
unless the requesting State provides such assurances as the requested State
considers sufficient that the death penalty shall not be imposed or, if
imposed, shall not be executed."
Canada abolished the death penalty in 1976, except for certain military
offences.
2.4 The power to seek assurances that the death penalty will not be imposed
is discretionary and is conferred on the Minister of Justice pursuant to
section 25 of the Extradition Act. In October 1989, the Minister of Justice
decided not to seek these assurances.
2.5 The author subsequently filed an application for review of the
Minister's decision with the Federal Court. On 8 June 1990, the issues in
the case were referred to the Supreme Court of Canada, which rendered
judgement on 26 September 1991. It found that the author's extradition
without assurances as to the imposition of the death penalty did not
contravene Canada's constitutional protection for human rights nor the
standards of the international community. The author was extradited on the
same day.
The Complaint
3. The author claims that the decision to extradite him violates articles 6,
7, 9, 10, 14 and 26 of the Covenant. He submits that the execution of the
death sentence by gas asphyxiation, as provided for under California
statutes, constitutes cruel and inhuman treatment or punishment per se, and
that the conditions on death row are cruel, inhuman and degrading. He
further alleges that the judicial procedures in California, inasmuch as they
relate specifically to capital punishment, do not meet basic requirements of
justice. In this context, the author alleges that in the United States,
racial bias influences the imposition of the death penalty.
THE STATE PARTY'S INITIAL OBSERVATIONS AND THE AUTHOR'S COMMENTS THEREON
4.1 The State party submits that the communication is inadmissible ratione
personae, loci and materiae.
4.2 It is argued that the author cannot be considered a victim within the
meaning of the Optional Protocol, since his allegations are derived from
assumptions about possible future events, which may not materialize and
which are dependent on the law and actions of the authorities of the United
States. The State party refers in this connection to the Committee's views
in communication No. 61/1979, [FN1] where it was found that the Committee
"has only been entrusted with the mandate of examining whether an individual
has suffered an actual violation of his rights. It cannot review in the
abstract whether national legislation contravenes the Covenant".
-------------------------------------------------------------------------------------------------------------------------------[FN1]
Official Records of the General Assembly, Thirty-seventh Session, Supplement
No. 40 (A/37/40), annex XIV, Leo Hertzberg et al. v. Finland, views adopted
on 2 April 1982, para. 9.3.
-------------------------------------------------------------------------------------------------------------------------------
4.3 The State party indicates that the author's allegations concern the
penal law and judicial system of a country other than Canada. It refers to
the Committee's inadmissibility decision in communication No. 217/1986,
[FN2] where the Committee observed that "it can only receive and consider
communications in respect of claims that come under the jurisdiction of a
State party to the Covenant". The State party submits that the Covenant does
not impose responsibility upon a State for eventualities over which it has
no jurisdiction.
-------------------------------------------------------------------------------------------------------------------------------[FN2]
Ibid., Forty-third Session, Supplement No. 40 (A/43/40), annex IX.C, H. v.
d. P. v. the Netherlands, declared inadmissible on 8 April 1987, para. 3.2.
-------------------------------------------------------------------------------------------------------------------------------
4.4 Moreover, it is submitted that the communication should be declared
inadmissible as incompatible with the provisions of the Covenant, since the
Covenant does not provide for a right not to be extradited. In this
connection, the State party quotes from the Committee's inadmissibility
decision in communication No. 117/1981: [FN3] "There is no provision of the
Covenant making it unlawful for a State party to seek extradition of a
person from another country". It further argues that even if extradition
could be found to fall within the scope of protection of the Covenant in
exceptional circumstances, these circumstances are not present in the
instant case.
-------------------------------------------------------------------------------------------------------------------------------[FN3]
Ibid., Thirty-ninth Session, Supplement No. 40 (A/39/40), annex XIV, M. A.
v. Italy, declared inadmissible on 10 April 1984, para. 13.4.
-------------------------------------------------------------------------------------------------------------------------------
4.5 The State party further refers to the United Nations Model Treaty on
Extradition, [FN4] which clearly contemplates the possibility of extradition
without conditions by providing for discretion in obtaining assurances
regarding the death penalty in the same fashion as is found in article 6 of
the Extradition Treaty between Canada and the United States. It concludes
that interference with the surrender of a fugitive pursuant to legitimate
requests from a treaty partner would defeat the principles and objects of
extradition treaties and would entail undesirable consequences for States
refusing these legitimate requests. In this context, the State party points
out that its long, unprotected border with the United States would make it
an attractive haven for fugitives from United States justice. If these
fugitives could not be extradited because of the theoretical possibility of
the death penalty, they would be effectively irremovable and would have to
be allowed to remain in the country, unpunished and posing a threat to the
safety and security of the inhabitants.
-------------------------------------------------------------------------------------------------------------------------------[FN4]
See General Assembly resolution 45/116 of 14 December 1990, annex.
-------------------------------------------------------------------------------------------------------------------------------
4.6 The State party finally submits that the author has failed to
substantiate his allegations that the treatment he may face in the United
States will violate his rights under the Covenant. In this connection, the
State party points out that the imposition of the death penalty is not per
se unlawful under the Covenant. As regards the delay between the imposition
and the execution of the death sentence, the State party submits that it is
difficult to see how a period of detention during which a convicted prisoner
would pursue all avenues of appeal, can be held to constitute a violation of
the Covenant.
5.1 In his comments on the State party's submission, counsel submits that
the author is and was himself actually and personally affected by the
decision of the State party to extradite him and that the communication is
therefore admissible ratione personae. In this context, he refers to the
Committee's views in communication No. 35/1978, [FN5] and argues that an
individual can claim to be a victim within the meaning of the Optional
Protocol if the laws, practices, actions or decisions of a State party raise
a real risk of violation of rights set forth in the Covenant.
-------------------------------------------------------------------------------------------------------------------------------[FN5]
Official Records of the General Assembly, Thirty-sixth Session, Supplement
No. 40 (A/36/40), annex XIII, S. Aumeeruddy-Cziffra et al. v. Mauritius,
views adopted on 9 April 1981, para. 9.2.
-------------------------------------------------------------------------------------------------------------------------------
5.2 Counsel further argues that, since the decision complained of is one
made by Canadian authorities while the author was subject to Canadian
jurisdiction, the communication is admissible ratione loci. In this
connection, he refers to the Committee's views in communication No.
110/1981, [FN6] where it was held that article 1 of the Covenant was
"clearly intended to apply to individuals subject to the jurisdiction of the
State party concerned at the time of the alleged violation of the Covenant"
(emphasis added).
-------------------------------------------------------------------------------------------------------------------------------[FN6]
Ibid., Thirty-ninth Session, Supplement No. 40 (A/39/40), annex XI, Antonio
Viana Acosta v. Uruguay, views adopted on 29 March 1984, para. 6.
-------------------------------------------------------------------------------------------------------------------------------
5.3 Counsel finally stresses that the author does not claim a right not to
be extradited; he only claims that he should not have been surrendered
without assurances that the death penalty would not be imposed. He submits
that the communication is therefore compatible with the provisions of the
Covenant. He refers in this context to the Committee's views on
communication No. 107/1981, [FN7] where the Committee found that anguish and
stress can give rise to a breach of the Covenant; he submits that this
finding is also applicable in the instant case.
-------------------------------------------------------------------------------------------------------------------------------[FN7]
Official Records of the General Assembly, Thirty-eighth Session, Supplement
No. 40 (A/38/40), annex XXII, Almeida de Quinteros v. Uruguay, views adopted
on 21 July 1983, para. 14.
-------------------------------------------------------------------------------------------------------------------------------
The Committee's consideration of and decision on admissibility
6.1 During its forty-sixth session, in October 1992, the Committee
considered the admissibility of the communication. It observed that
extradition as such is outside the scope of application of the Covenant,
[FN8] but that a State party's obligations in relation to a matter itself
outside the scope of the Covenant may still be engaged by reference to other
provisions of the Covenant. [FN9] The Committee noted that the author does
not claim that extradition as such violates the Covenant, but rather that
the particular circumstances related to the effects of his extradition would
raise issues under specific provisions of the Covenant. Accordingly, the
Committee found that the communication was thus not excluded ratione
materiae.
-------------------------------------------------------------------------------------------------------------------------------[FN8]
Ibid., Thirty-ninth Session, Supplement No. 40 (A/39/40), annex IV,
communication No. 117/1981 (M. A. v. Italy), decision adopted on 10 April
1984, para. 13.4: "There is no provision of the Covenant making it unlawful
for a State party to seek extradition of a person from another country".
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
[FN9] Official Records of the General Assembly, Thirty-sixth Session,
Supplement No. 40 (A/36/40), annex XIII, communication No. 35/1978 (Aumeeruddy-Cziffra
et al. v. Mauritius), views adopted on 9 April 1981; and ibid., Forty-fifth
Session, Supplement No. 40 (A/45/40), annex IX.K, communication No. 291/1988
(Torres v. Finland), views adopted on 2 April 1990.
---------------------------------------------------------------------------------------------------------------------
6.2 The Committee considered the contention of the State party that the
claim is inadmissible ratione loci. Article 2 of the Covenant requires
States parties to guarantee the rights of persons within their jurisdiction.
If a person is lawfully expelled or extradited, the State party concerned
will not generally have responsibility under the Covenant for any violations
of that person's rights that may later occur in the other jurisdiction. In
that sense, a State party clearly is not required to guarantee the rights of
persons within another jurisdiction. However, if a State party takes a
decision relating to a person within its jurisdiction, and the necessary and
foreseeable consequence is that this person's rights under the Covenant will
be violated in another jurisdiction, the State party itself may be in
violation of the Covenant. That follows from the fact that a State party's
duty under article 2 of the Covenant would be negated by the handing over of
a person to another State (whether a State party to the Covenant or not)
where treatment contrary to the Covenant is certain or is the very purpose
of the handing over. For example, a State party would itself be in violation
of the Covenant if it handed over a person to another State in circumstances
in which it was foreseeable that torture would take place. The
foreseeability of the consequence would mean that there was a present
violation by the State party, even though the consequence would not occur
until later on.
6.3 The Committee therefore considered itself, in principle, competent to
examine whether the State party is in violation of the Covenant by virtue of
its decision to extradite the author under the Extradition Treaty of 1976
between Canada and the United States, and the Extradition Act of 1985.
6.4 The Committee observed that pursuant to article 1 of the Optional
Protocol, the Committee may only receive and consider communications from
individuals subject to the jurisdiction of a State party to the Covenant and
to the Optional Protocol "who claim to be victims of a violation by that
State party of any of their rights set forth in the Covenant". It considered
that in the instant case, only the consideration of the merits of the
circumstances under which the extradition procedure and all its effects
occurred, would enable the Committee to determine whether the author is a
victim within the meaning of article 1 of the Optional Protocol.
Accordingly, the Committee found it appropriate to consider this issue,
which concerned the admissibility of the communication, together with the
examination of the merits of the case.
7. On 28 October 1992, the Human Rights Committee therefore decided to join
the question of whether the author was a victim within the meaning of
article 1 of the Optional Protocol to the consideration of the merits. The
Committee expressed its regret that the State party had not acceded to the
Committee's request, under rule 86, to stay extradition of the author.
The State party's further submission on the admissibility and the merits of
the communication
8.1 In its submission dated 14 May 1993, the State party elaborates on the
extradition process in general, on the Canada-United States extradition
relationship and on the specifics of the present case. It also submits
comments with respect to the admissibility of the communication, in
particular with respect to article 1 of the Optional Protocol.
8.2 The State party recalls that:
"... extradition exists to contribute to the safety of the citizens and
residents of States. Dangerous criminal offenders seeking a safe haven from
prosecution or punishment are removed to face justice in the State in which
their crimes were committed. Extradition furthers international cooperation
in criminal justice matters and strengthens domestic law enforcement. It is
meant to be a straightforward and expeditious process. Extradition seeks to
balance the rights of fugitives with the need for the protection of the
residents of the two States parties to any given extradition treaty. The
extradition relationship between Canada and the United States dates back to
1794 ... In 1842, the United States and Great Britain entered into the
Ashburton-Webster Treaty, which contained articles governing the mutual
surrender of criminals ... This treaty remained in force until the present
Canada-United States Extradition Treaty of 1976".
8.3 With regard to the principle aut dedere aut judicare, the State party
explains that while some States can prosecute persons for crimes committed
in other jurisdictions in which their own nationals are either the offender
or the victim, other States, such as Canada and certain other States in the
common law tradition, cannot.
8.4 Extradition in Canada is governed by the Extradition Act and the terms
of the applicable treaty. The Canadian Charter of Rights and Freedoms, which
forms part of the constitution of Canada and embodies many of the rights
protected by the Covenant, applies. Under Canadian law, extradition is a
two-step process. The first involves a hearing at which a judge considers
whether a factual and legal basis for extradition exists. The person sought
for extradition may submit evidence at the judicial hearing. If the judge is
satisfied with the evidence that a legal basis for extradition exists, the
fugitive is ordered committed to await surrender to the requesting State.
Judicial review of a warrant of committal to await surrender can be sought
by means of an application for a writ of habeas corpus in a provincial
court. A decision of the judge on the habeas corpus application can be
appealed to the provincial court of appeal and then, with leave, to the
Supreme Court of Canada. The second step in the extradition process begins
following the exhaustion of the appeals in the judicial phase. The Minister
of Justice is charged with the responsibility of deciding whether to
surrender the person sought for extradition. The fugitive may make written
submissions to the Minister, and counsel for the fugitive, with leave, may
appear before the Minister to present oral argument. In coming to a decision
on surrender, the Minister considers a complete record of the case from the
judicial phase, together with any written and oral submissions from the
fugitive, and while the Minister's decision is discretionary, the discretion
is circumscribed by law. The decision is based upon a consideration of many
factors, including Canada's obligations under the applicable treaty of
extradition, facts particular to the person and the nature of the crime for
which extradition is sought. In addition, the Minister must consider the
terms of the Canadian Charter of Rights and Freedoms and the various
instruments, including the Covenant, which outline Canada's international
human rights obligations. Finally, a fugitive may seek judicial review of
the Minister's decision by a provincial court and appeal a warrant of
surrender, with leave, up to the Supreme Court of Canada. In interpreting
Canada's human rights obligations under the Canadian Charter, the Supreme
Court of Canada is guided by international instruments to which Canada is a
party, including the Covenant.
8.5 With regard to surrender in capital cases, the Minister of Justice
decides whether or not to request assurances to the effect that the death
penalty should not be imposed or carried out on the basis of an examination
of the particular facts of each case. The Extradition Treaty between Canada
and the United States was not intended to make the seeking of assurances a
routine occurrence; rather, assurances had to be sought only in
circumstances where the particular facts of the case warrant a special
exercise of discretion.
8.6 With regard to the abolition of the death penalty in Canada, the State
party notes that:
"... certain States within the international community, including the United
States, continue to impose the death penalty. The Government of Canada does
not use extradition as a vehicle for imposing its concepts of criminal law
policy on other States. By seeking assurances on a routine basis, in the
absence of exceptional circumstances, Canada would be dictating to the
requesting State, in this case the United States, how it should punish its
criminal law offenders. The Government of Canada contends that this would be
an unwarranted interference with the internal affairs of another State. The
Government of Canada reserves the right ... to refuse to extradite without
assurances. This right is held in reserve for use only where exceptional
circumstances exist. In the view of the Government of Canada, it may be that
evidence showing that a fugitive would face certain or foreseeable
violations of the Covenant would be one example of exceptional circumstances
which would warrant the special measure of seeking assurances under article
6. However, the evidence presented by Ng during the extradition process in
Canada (which evidence has been submitted by counsel for Ng in this
communication) does not support the allegations that the use of the death
penalty in the United States generally, or in the State of California in
particular, violates the Covenant".
8.7 The State party also refers to article 4 of the United Nations Model
Treaty on Extradition, which lists optional, but not mandatory, grounds for
refusing extradition:
"(d) If the offence for which extradition is requested carries the death
penalty under the law of the Requesting State, unless the State gives such
assurance as the Requested State considers sufficient that the death penalty
will not be imposed or, if imposed, will not be carried out."
Similarly, article 6 of the Extradition Treaty between Canada and the United
States provides that the decision with respect to obtaining assurances
regarding the death penalty is discretionary.
8.8 With regard to the link between extradition and the protection of
society, the State party submits that Canada and the United States share a
4,800 kilometre unguarded border, that many fugitives from United States
justice cross that border into Canada and that in the last 12 years there
has been a steadily increasing number of extradition requests from the
United States. In 1980, there were 29 such requests; by 1992, the number had
increased to 88.
"Requests involving death penalty cases are a new and growing problem for
Canada ... a policy of routinely seeking assurances under article 6 of the
Canada-United States Extradition Treaty will encourage even more criminal
law offenders, especially those guilty of the most serious crimes, to flee
the United States for Canada. Canada does not wish to become a haven for the
most wanted and dangerous criminals from the United States. If the Covenant
fetters Canada's discretion not to seek assurances, increasing numbers of
criminals may come to Canada for the purpose of securing immunity from
capital punishment."
9.1 With regard to Mr. Ng's case, the State party recalls that he challenged
the warrant of committal to await surrender in accordance with the
extradition process outlined above, and that his counsel made written and
oral submissions to the Minister to seek assurances that the death penalty
would not be imposed. He argued that extradition to face the death penalty
would offend his rights under section 7 (comparable to articles 6 and 9 of
the Covenant) and section 12 (comparable to article 7 of the Covenant) of
the Canadian Charter of Rights and Freedoms. The Supreme Court heard Mr.
Ng's case at the same time as the appeal by Mr. Kindler, an American citizen
who also faced extradition to the United States on a capital charge, [FN10]
and decided that their extradition without assurances would not violate
Canada's human rights obligations.
-------------------------------------------------------------------------------------------------------------------------------[FN10]
Ibid., Forty-eighth Session, Supplement No. 40 (A/48/40), annex XII.U,
communication No. 470/1991 (Kindler v. Canada), views adopted on 30 July
1993.
-------------------------------------------------------------------------------------------------------------------------------
9.2 With regard to the admissibility of the communication, the State party
once more reaffirms that the communication should be declared inadmissible
ratione materiae because extradition per se is beyond the scope of the
Covenant. A review of the travaux préparatoires reveals that the drafters of
the Covenant specifically considered and rejected a proposal to deal with
extradition in the Covenant. In the light of the negotiating history of the
Covenant, the State party submits that:
"... a decision to extend the Covenant to extradition treaties or to
individual decisions pursuant thereto would stretch the principles governing
the interpretation of human rights instruments in unreasonable and
unacceptable ways. It would be unreasonable because the principles of
interpretation which recognize that human rights instruments are living
documents and that human rights evolve over time cannot be employed in the
face of express limits to the application of a given document. The absence
of extradition from the articles of the Covenant when read with the
intention of the drafters must be taken as an express limitation".
9.3 The State party further contends that Mr. Ng has not submitted any
evidence that would suggest that he was a victim of any violation in Canada
of rights set forth in the Covenant. In this context, the State party notes
that the author merely claims that his extradition to the United States was
in violation of the Covenant because he faces charges in the United States
which may lead to his being sentenced to death if found guilty. The State
party submits that it satisfied itself that the foreseeable treatment of Mr.
Ng in the United States would not violate his rights under the Covenant.
10.1 On the merits, the State party stresses that Mr. Ng enjoyed a full
hearing on all matters concerning his extradition to face the death penalty.
"If it can be said that the Covenant applies to extradition at all ... an
extraditing State could be said to be in violation of the Covenant only
where it returned a fugitive to certain or foreseeable treatment or
punishment, or to judicial procedures which in themselves would be a
violation of the Covenant."
In the present case, the State party submits that since Mr. Ng's trial has
not yet begun, it was not reasonably foreseeable that he would be held in
conditions of incarceration that would violate rights under the Covenant or
that he would in fact be put to death. The State party points out that if
convicted and sentenced to death, Mr. Ng is entitled to many avenues of
appeal in the United States and that he can petition for clemency.
Furthermore, he is entitled to challenge in the courts of the United States
the conditions under which he is held while his appeals with respect to the
death penalty are outstanding.
10.2 With regard to the imposition of the death penalty in the United
States, the State party recalls that article 6 of the Covenant did not
abolish capital punishment under international law:
"In countries which have not abolished the death penalty, the sentence of
death may still be imposed for the most serious crimes in accordance with
law in force at the time of the commission of the crime, not contrary to the
provisions of the Covenant and not contrary to the Convention on the
Prevention and Punishment of the Crime of Genocide. The death penalty can
only be carried out pursuant to a final judgement rendered by a competent
court. It may be that Canada would be in violation of the Covenant if it
extradited a person to face the possible imposition of the death penalty
where it was reasonably foreseeable that the requesting State would impose
the death penalty under circumstances which would violate article 6. That
is, it may be that an extraditing State would be violating the Covenant to
return a fugitive to a State which imposed the death penalty for other than
the most serious crimes, or for actions which are not contrary to a law in
force at the time of commission, or which carried out the death penalty in
the absence of or contrary to the final judgement of a competent court. Such
are not the facts here ... Ng did not place any evidence before the Canadian
courts, before the Minister of Justice or before the Committee that would
suggest that the United States was acting contrary to the stringent criteria
established by article 6 when it sought his extradition from Canada ... The
Government of Canada, in the person of the Minister of Justice, was
satisfied at the time the order of surrender was issued that if Ng is
convicted and executed in the State of California, this will be within the
conditions expressly prescribed by article 6 of the Covenant".
10.3 Finally, the State party observes that it is "in a difficult position
attempting to defend the criminal justice system of the United States before
the Committee. It contends that the Optional Protocol process was never
intended to place a State in the position of having to defend the laws or
practices of another State before the Committee."
10.4 With respect to the issue of whether the death penalty violates article
7 of the Covenant, the State party submits that:
"... article 7 cannot be read or interpreted without reference to article 6.
The Covenant must be read as a whole and its articles as being in harmony
... It may be that certain forms of execution are contrary to article 7.
Torturing a person to death would seem to fall into this category, as
torture is a violation of article 7. Other forms of execution may be in
violation of the Covenant because they are cruel, inhuman or degrading.
However, as the death penalty is permitted within the narrow parameters set
by article 6, it must be that some methods of execution exist which would
not violate article 7".
10.5 As to the method of execution, the State party submits that there is no
indication that execution by cyanide gas asphyxiation, the chosen method in
California, is contrary to the Covenant or to international law. It further
submits that no specific circumstances exist in Mr. Ng's case which would
lead to a different conclusion concerning the application of this method of
execution to him; nor would execution by gas asphyxiation be in violation of
the Safeguards guaranteeing protection of the rights of those facing the
death penalty, adopted by the Economic and Social Council in its resolution
1984/50 of 25 May 1984.
10.6 Concerning the "death row phenomenon", the State party submits that
each case must be examined on its specific facts, including the conditions
in the prison in which the prisoner would be held while on death row, the
age and mental and physical condition of the prisoner subject to those
conditions, the reasonably foreseeable length of time the prisoner would be
subject to those conditions, the reasons underlying the length of time and
the avenues, if any, for remedying unacceptable conditions. It is submitted
that the Minister of Justice and the Canadian courts examined and weighed
all the evidence submitted by Mr. Ng as to the conditions of incarceration
of persons sentenced to death in California:
"The Minister of Justice ... was not convinced that the conditions of
incarceration in the State of California, considered together with the facts
personal to Ng, the element of delay and the continuing access to the courts
in the State of California and to the Supreme Court of the United States,
would violate Ng's rights under the Canadian Charter of Rights and Freedoms
or under the Covenant. The Supreme Court of Canada upheld the Minister's
decision in such a way as to make clear that the decision would not subject
Ng to a violation of his rights under the Canadian Charter of Rights and
Freedoms."
10.7 With respect to the question of the foreseeable length of time Mr. Ng
would spend on death row if sentenced to death, the State party stated that:
"... [t]here was no evidence before the Minister or the Canadian courts
regarding any intentions of Ng to make full use of all avenues for judicial
review in the United States of any potential sentence of death. There was no
evidence that either the judicial system in the State of California or the
Supreme Court of the United States had serious problems of backlogs or other
forms of institutional delay which would likely be a continuing problem when
and if Ng is held to await execution".
In this connection, the State party refers to the Committee's jurisprudence
that prolonged judicial proceedings do not per se constitute cruel, inhuman
or degrading treatment even if they can be a source of mental strain for the
convicted prisoners. [FN11] The State party contends that it was not
reasonably foreseeable on the basis of the facts presented by Mr. Ng during
the extradition process in Canada that any possible period of prolonged
detention upon his return to the United States would result in a violation
of the Covenant, but that it was more likely that any prolonged detention on
death row would be attributable to Mr. Ng pursuing the many avenues for
judicial review in the United States.
-------------------------------------------------------------------------------------------------------------------------------[FN11]
Ibid., Forty-fourth Session, Supplement No. 40 (A/44/40), annex X.F,
communications Nos. 210/1986 and 225/1987 (Earl Pratt and Ivan Morgan v.
Jamaica), views adopted on 6 April 1989; and ibid., Forty-seventh Session,
Supplement No. 40 (A/47/40), annex IX.F, communications Nos. 270/1988 and
271/1988 (Randolph Barrett and Clyde Sutcliffe v. Jamaica), views adopted on
30 March 1992.
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AUTHOR'S AND COUNSEL'S COMMENTS ON THE STATE PARTY'S SUBMISSION
11.1 With regard to the extradition process in Canada, counsel points out
that a fugitive is ordered committed to await surrender when the judge is
satisfied that a legal basis for extradition exists. Counsel emphasizes,
however, that the extradition hearing is not a trial and the fugitive has no
general right to cross-examine witnesses. The extradition judge does not
weigh evidence against the fugitive with regard to the charges against him,
but essentially determines whether a prima facie case exists. Because of
this limited competence, no evidence can be called pertaining to the effects
of the surrender on the fugitive.
11.2 As regards article 6 of the Extradition Treaty, counsel recalls that
when the Treaty was signed in December 1971, the Canadian Criminal Code
still provided for capital punishment in cases of murder, so that article 6
could have been invoked by either contracting State. Counsel submits that
article 6 does not require assurances to be sought only in particularly
"special" death penalty cases. He argues that the provision of the
possibility to ask for assurances under article 6 of the Treaty implicitly
acknowledges that offences punishable by death are to be dealt with
differently, that different values and traditions with regard to the death
penalty may be taken into account when deciding upon an extradition request
and that an actual demand for assurances will not be perceived by the other
party as unwarranted interference with the internal affairs of the
requesting State. In particular, article 6 of the Treaty is said to "...
allow the requested State ... to maintain a consistent position: if the
death penalty is rejected within its own borders ... it could negate any
responsibility for exposing a fugitive through surrender, to the risk of
imposition of that penalty or associated practices and procedures in the
other State". It is further submitted that "it is very significant that the
existence of the discretion embodied in article 6, in relation to the death
penalty, enables the contracting parties to honour both their own domestic
constitutions and their international obligations without violating their
obligations under the bilateral Extradition Treaty".
11.3 With regard to the link between extradition and the protection of
society, counsel notes that the number of requests for extradition by the
United States in 1991 was 17, whereas the number in 1992 was 88. He recalls
that at the end of 1991, the Extradition Treaty between the United States
and Canada was amended to the effect that, inter alia, taxation offences
became extraditable; ambiguities with regard to the rules of double jeopardy
and reciprocity were removed. Counsel contends that the increase in
extradition requests may be attributable to these 1991 amendments. In this
context, he submits that at the time of the author's surrender, article 6 of
the Treaty had been in force for 15 years, during which the Canadian
Minister of Justice had been called upon to make no more than three
decisions on whether or not to ask for assurances that the death penalty
would not be imposed or executed. It is therefore submitted that the State
party's fear that routine requests for assurances would lead to a flood of
capital defendants is unsubstantiated. Counsel finally argues that it is
inconceivable that the United States would have refused article 6 assurances
had they been requested in the author's case.
11.4 As regards the extradition proceedings against Mr. Ng, counsel notes
that his Federal Court action against the Minister's decision to extradite
the author without seeking assurances never was decided upon by the Federal
Court, but was referred to the Supreme Court to be decided together with Mr.
Kindler's appeal. In this context, counsel notes that the Supreme Court,
when deciding that the author's extradition would not violate the Canadian
constitution, failed to discuss criminal procedure in California or evidence
adduced in relation to the death row phenomenon in California.
11.5 As to the State party's argument that extradition is beyond the scope
of the Covenant, counsel argues that the travaux préparatoires do not show
that the fundamental human rights set forth in the Covenant should never
apply to extradition situations:
"Reluctance to include an express provision on extradition because the
Covenant should 'lay down general principles' or because it should lay down
'fundamental human rights and not rights which are corollaries thereof' or
because extradition was 'too complicated to be included in a single article'
simply does not bespeak an intention to narrow or stultify those 'general
principles' or 'fundamental human rights' or evidence a consensus that these
general principles should never apply to extradition situations."
11.6 Counsel further argues that already during the extradition proceedings
in Canada, the author suffered from anxiety because of the uncertainty of
his fate, the possibility of being surrendered to California to face capital
charges and the likelihood that he would be "facing an extremely hostile and
high security reception by California law enforcement agencies", and that he
must therefore be considered a victim within the meaning of article 1 of the
Optional Protocol. In this context, the author submits that he was aware
"that the California Supreme Court had, since 1990, become perhaps the most
rigid court in the country in rejecting appeals from capital defendants".
11.7 The author refers to the Committee's decision of 28 October 1992 and
submits that in the circumstances of his case, the very purpose of his
extradition without seeking assurances was to foreseeably expose him to the
imposition of the death penalty and consequently to the death row
phenomenon. In this connection, counsel submits that the author's
extradition was sought upon charges which carry the death penalty, and that
the prosecution in California never left any doubt that it would indeed seek
the death penalty. He quotes the Assistant District Attorney in San
Francisco as saying that: "there is sufficient evidence to convict and send
Ng to the gas chamber if he is extradited ...".
11.8 In this context, counsel quotes from the judgment of the European Court
of Human Rights in the Soering case:
"In the independent exercise of his discretion, the Commonwealth's attorney
has himself decided to seek and persist in seeking the death penalty because
the evidence, in his determination, supports such action. If the national
authority with responsibility for prosecuting the offence takes such a firm
stance, it is hardly open to the court to hold that there are no substantial
grounds for believing that the applicant faces a real risk of being
sentenced to death and hence experiencing the 'death row phenomenon'."
Counsel submits that, at the time of extradition, it was foreseeable that
the author would be sentenced to death in California and therefore be
exposed to violations of the Covenant.
11.9 Counsel refers to several resolutions adopted by the General Assembly
in which the abolition of the death penalty was considered desirable. [FN12]
He further refers to Protocol 6 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms and to the Second
Optional Protocol to the International Covenant on Civil and Political
Rights: "[O]ver the last fifty years there has been a progressive and
increasingly rapid evolution away from the death penalty. That evolution has
led almost all Western democracies to abandon it". He argues that this
development should be taken into account when interpreting the Covenant.
-------------------------------------------------------------------------------------------------------------------------------[FN12]
General Assembly resolutions 2857 (XXVI) of 20 December 1971, 32/61 of 8
December 1977 and 37/192 of 18 December 1982.
-------------------------------------------------------------------------------------------------------------------------------
11.10 As to the method of execution in California, cyanide gas asphyxiation,
counsel argues that it constitutes inhuman and degrading punishment within
the meaning of article 7 of the Covenant. He notes that asphyxiation may
take up to 12 minutes, during which condemned persons remain conscious,
experience obvious pain and agony, drool and convulse and often soil
themselves (reference is made to the execution of Robert F. Harris at San
Quentin Prison in April 1992). Counsel further argues that, given the cruel
character of this method of execution, a decision of Canada not to extradite
without assurances would not constitute a breach of its Treaty obligations
with the United States or undue interference with the latter's internal law
and practices. Furthermore, counsel notes that cyanide gas execution is the
sole method of execution in only three States in the United States (Arizona,
Maryland and California), and that there is no evidence to suggest that it
is an approved means of carrying out judicially mandated executions
elsewhere in the international community.
11.11 As to the death row phenomenon, the author emphasizes that he intends
to make full use of all avenues of appeal and review in the United States,
and that his intention was clear to the Canadian authorities during the
extradition proceedings. As to the delay in criminal proceedings in
California, counsel refers to estimates that it would require the Supreme
Court of California 16 years to clear the present backlog in hearing capital
appeals. The author reiterates that the judgements of the Supreme Court in
Canada did not in any detail discuss evidence pertaining to capital
procedures in California, conditions on death row at San Quentin Prison or
execution by cyanide gas, although he presented evidence relating to these
issues to the Court. He refers to his factum to the Supreme Court, in which
it was stated:
"At present, there are approximately 280 inmates on death row at San
Quentin. The cells in which inmates are housed afford little room for
movement. Exercise is virtually impossible. When a condemned inmate
approaches within three days of an execution date, he is placed under
24-hour guard in a range of three stripped cells. This can occur numerous
times during the review and appeal process ... Opportunity for exercise is
very limited in a small and crowded yard. Tension is consistently high and
can escalate as execution dates approach. Secondary tension and anguish is
experienced by some as appeal and execution dates approach for others. There
is little opportunity to relieve tension. Programmes are extremely limited.
There are no educational programmes. The prison does little more than
warehouse the condemned for years pending execution ... Death row inmates
have few visitors and few financial resources, increasing their sense of
isolation and hopelessness. Suicides occur and are attributable to the
conditions, lack of programmes, extremely inadequate psychiatric and
physiological care and the tension, apprehension, depression and despair
which permeate death row."
11.12 Finally, the author describes the circumstances of his present
custodial regime at Folsom Prison, California, conditions which he submits
would be similar if convicted. He submits that whereas the other detainees,
all convicted criminals, have a proven track record of prison violence and
gang affiliation, he, as a pre-trial detainee, is subjected to far more
severe custodial restraints than any of them. Thus, when moving around in
the prison, he is always put in full shackles (hand, waist and legs), is
forced to keep leg irons on when showering, is not allowed any social
interaction with the other detainees; is given less than five hours per week
of yard exercise; and is continuously facing hostility from the prison
staff, in spite of good behaviour. Mr. Ng adds that unusual and very onerous
conditions have been imposed on visits from his lawyers and others working
on his case; direct face-to-face conversations with investigators have been
made impossible, and conversations with them, conducted over the telephone
or through a glass window, may be overheard by prison staff. These
restrictions are said to seriously undermine the preparation of his trial
defence. Moreover, his appearances in Calaveras County Court are accompanied
by exceptional security measures. For example, during every court recess,
the author is taken from the courtroom to an adjacent jury room and placed,
still shackled, into a three foot by four foot cage, specially built for the
case. The author contends that no pre-trial detainee has ever been subjected
to such drastic security measures in California.
11.13 The author concludes that the conditions of confinement have taken a
heavy toll on him, physically and mentally. He has lost much weight and
suffers from sleeplessness, anxiety and other nervous disorders. This
situation, he emphasizes, has foreclosed "progress toward preparation of a
reasonably adequate defence".
FURTHER SUBMISSION FROM THE AUTHOR AND THE STATE PARTY'S REACTION THERETO
12.1 In an affidavit dated 5 June 1993, signed by Mr. Ng and submitted by
his counsel, the author provides detailed information about the conditions
of his confinement in Canada between 1985 and his extradition in September
1991. He notes that following his arrest on 6 July 1985, he was kept at the
Calgary Remand Center in solitary confinement under a so-called "suicide
watch", which meant 24-hour camera supervision and the placement of a guard
outside the bars of the cell. He was only allowed one hour of exercise each
day in the Center's "mini-yard", on "walk-alone status" and accompanied by
two guards. As the extradition process unfolded in Canada, the author was
transferred to a prison in Edmonton; he complains about "drastically more
severe custodial restrictions" from February 1987 to September 1991, which
he links to the constant and escalating media coverage of the case. Prison
guards allegedly began to tout him, he was kept in total isolation, and
contact with visitors was restricted.
12.2 Throughout the period from 1987 to 1991, the author was kept informed
about progress in the extradition process; his lawyers informed him about
the "formidable problems" he would face if returned to California for
prosecution, as well as about the "increasingly hostile political and
judicial climate in California towards capital defendants generally". As a
result, he experienced extreme stress, sleeplessness and anxiety, all of
which were heightened as the dates of judicial decisions in the extradition
process approached.
12.3 Finally, the author complains about the deceptions committed by
Canadian prison authorities following the release of the decision of the
Canadian Supreme Court on 26 September 1991. Thus, instead of being allowed
to contact counsel after the release of the decision and to obtain advice
about the availability of any remedies, as agreed between counsel and a
prison warden, he claims that he was lured from his cell, in the belief that
he would be allowed to contact counsel, and thereafter told that he was
being transferred to the custody of United States marshals.
12.4 The State party objects to these new allegations as they "are separate
from the complainant's original submission and can only serve to delay
consideration of the original communication by the Human Rights Committee".
It accordingly requests the Committee not to take these claims into
consideration.
REVIEW OF ADMISSIBILITY AND CONSIDERATION OF MERITS
13.1 In his initial submission, author's counsel alleged that Mr. Ng was a
victim of violations of articles 6, 7, 9, 10, 14 and 26 of the Covenant.
13.2 When the Committee considered the admissibility of the communication
during its forty-sixth session and adopted a decision relating thereto
(decision of 28 October 1992), it noted that the communication raised
complex issues with regard to the compatibility with the Covenant, ratione
materiae, of extradition to face capital punishment, in particular with
regard to the scope of articles 6 and 7 of the Covenant to such situations
and their application in the author's case. It noted, however, that
questions about the issue of whether the author could be deemed a "victim"
within the meaning of article 1 of the Optional Protocol remained, but held
that only consideration of the merits of all the circumstances under which
the extradition procedure and all its effects occurred, would enable the
Committee to determine whether Mr. Ng was indeed a victim within the meaning
of article 1. The State party has made extensive new submissions on both
admissibility and merits and reaffirmed that the communication is
inadmissible because "the evidence shows that Ng is not the victim of any
violation in Canada of rights set out in the Covenant". Counsel, in turn,
has filed detailed objections to the State party's affirmations.
13.3 In reviewing the question of admissibility, the Committee takes note of
the contentions of the State party and of counsel's arguments. It notes that
counsel, in submissions made after the decision of 28 October 1992, has
introduced entirely new issues which were not raised in the original
communication, and which relate to Mr. Ng's conditions of detention in
Canadian penitentiaries, the stress to which he was exposed as the
extradition process proceeded, and alleged deceptive manoeuvres by Canadian
prison authorities.
13.4 These fresh allegations, if corroborated, would raise issues under
articles 7 and 10 of the Covenant, and would bring the author within the
ambit of article 1 of the Optional Protocol. While the wording of the
decision of 28 October 1992 would not have precluded counsel from
introducing them at this stage of the procedure, the Committee, in the
circumstances of the case, finds that it need not address the new claims, as
domestic remedies before the Canadian courts were not exhausted in respect
of them. It transpires from the material before the Committee that
complaints about the conditions of the author's detention in Canada or about
alleged irregularities committed by Canadian prison authorities were not
raised either during the committal or the surrender phase of the extradition
proceedings. Had it been argued that an effective remedy for the
determination of these claims is no longer available, the Committee finds
that it was incumbent upon counsel to raise them before the competent
courts, provincial or federal, at the material time. This part of the
author's allegations is therefore declared inadmissible under article 5,
paragraph 2 (b), of the Optional Protocol.
13.5 It remains for the Committee to examine the author's claim that he is a
"victim" within the meaning of the Optional Protocol because he was
extradited to California on capital charges pending trial, without the
assurances provided for in article 6 of the Extradition Treaty between
Canada and the United States. In this connection, it is to be recalled that:
(a) California had sought the author's extradition on charges which, if
proven, carry the death penalty; (b) the United States requested Mr. Ng's
extradition on those capital charges; (c) the extradition warrant documents
the existence of a prima facie case against the author; (d) United States
prosecutors involved in the case have stated that they would ask for the
death penalty to be imposed; and (e) the State of California, when
intervening before the Supreme Court of Canada, did not disavow the
prosecutors' position. The Committee considers that these facts raise
questions with regard to the scope of articles 6 and 7, in relation to
which, on issues of admissibility alone, the Committee's jurisprudence is
not dispositive. As indicated in the case of Kindler v. Canada, [FN13] only
an examination on the merits of the claims will enable the Committee to
pronounce itself on the scope of these articles and to clarify the
applicability of the Covenant and Optional Protocol to cases concerning
extradition to face the death penalty.
-------------------------------------------------------------------------------------------------------------------------------[FN13]
See communication No. 470/1991, views adopted on 30 July 1993, para. 12.3.
-------------------------------------------------------------------------------------------------------------------------------
14.1 Before addressing the merits of the communication, the Committee
observes that what is at issue is not whether Mr. Ng's rights have been or
are likely to be violated by the United States, which is not a State party
to the Optional Protocol, but whether by extraditing Mr. Ng to the United
States, Canada exposed him to a real risk of a violation of his rights under
the Covenant. States parties to the Covenant will also frequently be parties
to bilateral treaty obligations, including those under extradition treaties.
A State party to the Covenant must ensure that it carries out all its other
legal commitments in a manner consistent with the Covenant. The
starting-point for consideration of this issue must be the State party's
obligation, under article 2, paragraph 1, of the Covenant, namely, to ensure
to all individuals within its territory and subject to its jurisdiction the
rights recognized in the Covenant. The right to life is the most essential
of these rights.
14.2 If a State party extradites a person within its jurisdiction in such
circumstances, and if, as a result, there is a real risk that his or her
rights under the Covenant will be violated in another jurisdiction, the
State party itself may be in violation of the Covenant.
15.1 With regard to a possible violation by Canada of article 6 of the
Covenant by its decision to extradite Mr. Ng, two related questions arise:
(a) Did the requirement under article 6, paragraph 1, to protect the right
to life prohibit Canada from exposing a person within its jurisdiction to
the real risk (i.e. a necessary and foreseeable consequence) of being
sentenced to death and losing his life in circumstances incompatible with
article 6 of the Covenant as a consequence of extradition to the United
States?
(b) Did the fact that Canada had abolished capital punishment except for
certain military offences require Canada to refuse extradition or request
assurances from the United States, as it was entitled to do under article 6
of the Extradition Treaty, that the death penalty would not be imposed
against Mr. Ng?
15.2 Counsel claims that capital punishment must be viewed as a violation of
article 6 of the Covenant "in all but the most horrendous cases of heinous
crime; it can no longer be accepted as the standard penalty for murder".
Counsel, however, does not substantiate this statement or link it to the
specific circumstances of the present case. In reviewing the facts submitted
by author's counsel and by the State party, the Committee notes that Mr. Ng
was convicted of committing murder under aggravating circumstances; this
would appear to bring the case within the scope of article 6, paragraph 2,
of the Covenant. In this connection the Committee recalls that it is not a
"fourth instance" and that it is not within its competence under the
Optional Protocol to review sentences of the courts of States. This
limitation of competence applies a fortiori where the proceedings take place
in a State that is not party to the Optional Protocol.
15.3 The Committee notes that article 6, paragraph 1, must be read together
with article 6, paragraph 2, which does not prohibit the imposition of the
death penalty for the most serious crimes. Canada did not itself charge Mr.
Ng with capital offences, but extradited him to the United States, where he
faces capital charges and the possible (and foreseeable) imposition of the
death penalty. If Mr. Ng had been exposed, through extradition from Canada,
to a real risk of a violation of article 6, paragraph 2, in the United
States, this would have entailed a violation by Canada of its obligations
under article 6, paragraph 1. Among the requirements of article 6, paragraph
2, is that capital punishment be imposed only for the most serious crimes,
under circumstances not contrary to the Covenant and other instruments, and
that it be carried out pursuant to a final judgement rendered by a competent
court. The Committee notes that Mr. Ng was extradited to stand trial on 19
criminal charges, including 12 counts of murder. If sentenced to death, that
sentence, based on the information which the Committee has before it, would
be based on a conviction of guilt in respect of very serious crimes. He was
over 18 years old when the crimes of which he stands accused were committed.
Finally, while the author has claimed before the Supreme Court of Canada and
before the Committee that his right to a fair trial would not be guaranteed
in the judicial process in California, because of racial bias in the jury
selection process and in the imposition of the death penalty, these claims
have been advanced in respect of purely hypothetical events. Nothing in the
file supports the contention that the author's trial in the Calaveras County
Court would not meet the requirements of article 14 of the Covenant.
15.4 Moreover, the Committee observes that Mr. Ng was extradited to the
United States after extensive proceedings in the Canadian courts, which
reviewed all the charges and the evidence available against the author. In
the circumstances, the Committee concludes that Canada's obligations under
article 6, paragraph 1, did not require it to refuse Mr. Ng's extradition.
15.5 The Committee notes that Canada has itself, except for certain
categories of military offences, abolished capital punishment; it is not,
however, a party to the Second Optional Protocol to the Covenant. As to
issue (b) in paragraph 15.1 above, namely, whether the fact that Canada has
generally abolished capital punishment, taken together with its obligations
under the Covenant, required it to refuse extradition or to seek the
assurances it was entitled to seek under the Extradition Treaty, the
Committee observes that abolition of capital punishment does not release
Canada of its obligations under extradition treaties. However, it should be
expected that, when exercising a permitted discretion under an extradition
treaty (namely, whether or not to seek assurances that the death penalty
would not be imposed), a State party, which itself abandoned capital
punishment, will give serious consideration to its own chosen policy. The
Committee notes, however, that Canada has indicated that the possibility of
seeking assurances would normally be exercised where special circumstances
existed; in the present case, this possibility was considered and rejected.
15.6 While States must be mindful of their obligation to protect the right
to life when exercising their discretion in the application of extradition
treaties, the Committee does not find that the terms of article 6 of the
Covenant necessarily require Canada to refuse to extradite or to seek
assurances. The Committee notes that the extradition of Mr. Ng would have
violated Canada's obligations under article 6 of the Covenant if the
decision to extradite without assurances had been taken summarily or
arbitrarily. The evidence before the Committee reveals, however, that the
Minister of Justice reached his decision after hearing extensive arguments
in favour of seeking assurances. The Committee further takes note of the
reasons advanced by the Minister of Justice in his letter dated 26 October
1989 addressed to Mr. Ng's counsel, in particular, the absence of
exceptional circumstances, the availability of due process and of appeal
against conviction and the importance of not providing a safe haven for
those accused of murder.
15.7 In the light of the above, the Committee concludes that Mr. Ng is not a
victim of a violation by Canada of article 6 of the Covenant.
16.1 In determining whether, in a particular case, the imposition of capital
punishment constitutes a violation of article 7, the Committee will have
regard to the relevant personal factors regarding the author, the specific
conditions of detention on death row and whether the proposed method of
execution is particularly abhorrent. In the instant case, it is contented
that execution by gas asphyxiation is contrary to internationally accepted
standards of humane treatment, and that it amounts to treatment in violation
of article 7 of the Covenant. The Committee begins by noting that whereas
article 6, paragraph 2, allows for the imposition of the death penalty under
certain limited circumstances, any method of execution provided for by law
must be designed in such a way as to avoid conflict with article 7.
16.2 The Committee is aware that, by definition, every execution of a
sentence of death may be considered to constitute cruel and inhuman
treatment within the meaning of article 7 of the Covenant; on the other
hand, article 6, paragraph 2, permits the imposition of capital punishment
for the most serious crimes. None the less, the Committee reaffirms, as it
did in its general comment 20(44) on article 7 of the Covenant that, when
imposing capital punishment, the execution of the sentence "must be carried
out in such a way as to cause the least possible physical and mental
suffering". [FN14]
-------------------------------------------------------------------------------------------------------------------------------[FN14]
Official Records of the General Assembly, Forty-seventh Session, Supplement
No. 40 (A/47/40), annex VI.A, general comment 20(44), para. 6.
-------------------------------------------------------------------------------------------------------------------------------
16.3 In the present case, the author has provided detailed information that
execution by gas asphyxiation may cause prolonged suffering and agony and
does not result in death as swiftly as possible, as asphyxiation by cyanide
gas may take over 10 minutes. The State party had the opportunity to refute
these allegations on the facts; it has failed to do so. Rather, the State
party has confined itself to arguing that in the absence of a norm of
international law which expressly prohibits asphyxiation by cyanide gas, "it
would be interfering to an unwarranted degree with the internal laws and
practices of the United States to refuse to extradite a fugitive to face the
possible imposition of the death penalty by cyanide gas asphyxiation".
16.4 In the instant case and on the basis of the information before it, the
Committee concludes that execution by gas asphyxiation, should the death
penalty be imposed on the author, would not meet the test of "least possible
physical and mental suffering", and constitutes cruel and inhuman treatment,
in violation of article 7 of the Covenant. Accordingly, Canada, which could
reasonably foresee that Mr. Ng, if sentenced to death, would be executed in
a way that amounts to a violation of article 7, failed to comply with its
obligations under the Covenant, by extraditing Mr. Ng without having sought
and received assurances that he would not be executed.
16.5 The Committee need not pronounce itself on the compatibility with
article 7 of methods of execution other than that which is at issue in this
case.
17. The Human Rights Committee, acting under article 5, paragraph 4, of the
International Covenant on Civil and Political Rights, is of the view that
the facts as found by the Committee reveal a violation by Canada of article
7 of the Covenant.
18. The Human Rights Committee requests the State party to make such
representations as might still be possible to avoid the imposition of the
death penalty and appeals to the State party to ensure that a similar
situation does not arise in the future.
The texts of eight individual opinions, submitted by nine Committee members,
are appended.
APPENDIX
INDIVIDUAL OPINIONS SUBMITTED UNDER RULE 94, PARAGRAPH 3, OF THE RULES
OF PROCEDURE OF THE HUMAN RIGHTS COMMITTEE
A. INDIVIDUAL OPINION SUBMITTED BY MR. FAUSTO POCAR (PARTLY DISSENTING,
PARTLY CONCURRING AND ELABORATING)
I cannot agree with the finding of the Committee that in the present case,
there has been no violation of article 6 of the Covenant. The question of
whether the fact that Canada had abolished capital punishment except for
certain military offences required its authorities to refuse extradition or
request assurances from the United States to the effect that the death
penalty would not be imposed on Mr. Charles Chitat Ng, must, in my view,
receive an affirmative answer.
Regarding the death penalty, it must be recalled that, although article 6 of
the Covenant does not prescribe categorically the abolition of capital
punishment, it imposes a set of obligations on States parties that have not
yet abolished it. As the Committee pointed out in its general comment 6
(16), "the article also refers generally to abolition in terms which
strongly suggest that abolition is desirable". Furthermore, the wording of
paragraphs 2 and 6 clearly indicates that article 6 tolerates - within
certain limits and in view of future abolition - the existence of capital
punishment in States parties that have not yet abolished it, but may by no
means be interpreted as implying for any State party an authorization to
delay its abolition or, a fortiori, to enlarge its scope or to introduce or
reintroduce it. Accordingly, a State party that has abolished the death
penalty is, in my view, under the legal obligation, under article 6 of the
Covenant, not to reintroduce it. This obligation must refer both to a direct
reintroduction within the State party's jurisdiction, as well as to an
indirect one, as is the case when the State acts - through extradition,
expulsion or compulsory return - in such a way that an individual within its
territory and subject to its jurisdiction may be exposed to capital
punishment in another State. I therefore conclude that in the present case
there has been a violation of article 6 of the Covenant.
Regarding the claim under article 7, I agree with the Committee that there
has been a violation of the Covenant, but on different grounds. I subscribe
to the observation of the Committee that "by definition, every execution of
a sentence of death may be considered to constitute cruel and inhuman
treatment within the meaning of article 7 of the Covenant". Consequently, a
violation of the provisions of article 6 that may make such treatment, in
certain circumstances, permissible, entails necessarily, and irrespective of
the way in which the execution may be carried out, a violation of article 7
of the Covenant. It is for these reasons that I conclude in the present case
that there has been a violation of article 7 of the Covenant.
B. INDIVIDUAL OPINION SUBMITTED BY MESSRS. A. MAVROMMATIS AND W. SADI
(DISSENTING)
We do not believe that, on the basis of the material before us, execution by
gas asphyxiation could constitute cruel and inhuman treatment within the
meaning of article 7 of the Covenant. A method of execution such as death by
stoning, which is intended to and actually inflicts prolonged pain and
suffering, is contrary to article 7.
Every known method of judicial execution in use today, including execution
by lethal injection, has come under criticism for causing prolonged pain or
the necessity to have the process repeated. We do not believe that the
Committee should look into such details in respect of execution such as
whether acute pain of limited duration or less pain of longer duration is
preferable and could be a criterion for a finding of violation of the
Covenant.
C. INDIVIDUAL OPINION SUBMITTED BY MR. RAJSOOMER LALLAH (DISSENTING)
For the reasons I have already given in my separate opinion in the case of
J. J. Kindler v. Canada (communication No. 470/1991) with regard to the
obligations of Canada under the Covenant, I would conclude that there has
been a violation of article 6 of the Covenant. If only for that reason
alone, article 7 has also, in my opinion, been violated.
Even at this stage, Canada should use its best efforts to provide a remedy
by making appropriate representations, so as to ensure that, if convicted
and sentenced to death, the author would not be executed.
D. Individual opinion submitted by Mr. Bertil Wennergren
(partly dissenting, partly concurring)
I do not share the Committee's views with respect to a non-violation of
article 6 of the Covenant, as expressed in paragraphs 15.6 and 15.7 of the
views. On grounds that I have developed in detail in my individual opinion
concerning the Committee's views on communication No.470/1991 (Joseph
Kindler v. Canada) Canada did, in my view, violate article 6, paragraph 1,
of the Covenant by consenting to extradite Mr. Ng to the United States
without having secured assurances that he would not, if convicted and
sentenced to death, be subjected to the execution of the death sentence.
I do share the Committee's views, formulated in paragraphs 16.1 to 16.5,
that Canada failed to comply with its obligations under the Covenant by
extraditing Mr. Ng to the United States, where, if sentenced to death, he
would be executed by means of a method that amounts to a violation of
article 7. In my view, article 2 of the Covenant obliged Canada not merely
to seek assurances that Mr. Ng would not be subjected to the execution of a
death sentence but also, if it decided none the less to extradite Mr. Ng
without such assurances, as was the case, to at least secure assurances that
he would not be subjected to the execution of the death sentence by cyanide
gas asphyxiation.
Article 6, paragraph 2, of the Covenant permits courts in countries which
have not abolished the death penalty to impose the death sentence on an
individual if that individual has been found guilty of a most serious crime,
and to carry out the death sentence by execution. This exception from the
rule of article 6, paragraph 1, applies only vis-à-vis the State party in
question, not vis-à-vis other States parties to the Covenant. It therefore
did not apply to Canada as it concerned an execution to be carried out in
the United States.
By definition, every type of deprivation of an individual's life is inhuman.
In practice, however, some methods have by common agreement been considered
as acceptable methods of execution. Asphyxiation by gas is definitely not to
be found among them. There remain, however, divergent opinions on this
subject. On 21 April 1992, the Supreme Court of the United States denied an
individual a stay of execution by gas asphyxiation in California by a
seven-to-two vote. One of the dissenting justices, Justice John Paul
Stevens, wrote:
"The barbaric use of cyanide gas in the Holocaust, the development of
cyanide agents as chemical weapons, our contemporary understanding of
execution by lethal gas and the development of less cruel methods of
execution all demonstrate that execution by cyanide gas is unnecessarily
cruel. In light of all we know about the extreme and unnecessary pain
inflicted by execution by cyanide gas."
Justice Stevens found that the individual's claim had merit.
In my view, the above summarizes in a very convincing way why gas
asphyxiation must be considered as a cruel and unusual punishment that
amounts to a violation of article 7. What is more, the State of California,
in August 1992, enacted a statute law that enables an individual under
sentence of death to choose lethal injection as the method of execution, in
lieu of the gas chamber. The statute law went into effect on 1 January 1993.
Two executions by lethal gas had taken place during 1992, approximately one
year after the extradition of Mr. Ng. By amending its legislation in the way
described above, the State of California joined 22 other States in the
United States. The purpose of the legislative amendment was not, however, to
eliminate an allegedly cruel and unusual punishment, but to forestall
last-minute appeals by condemned prisoners who might argue that execution by
lethal gas constitutes such punishment. Not that I consider execution by
lethal injection acceptable either from a point of view of humanity, but -
at least - it does not stand out as an unnecessarily cruel and inhumane
method of execution, as does gas asphyxiation. Canada failed to fulfil its
obligation to protect Mr. Ng against cruel and inhuman punishment by
extraditing him to the United States (the State of California), where he
might be subjected to such punishment. And Canada did so without seeking and
obtaining assurances of his non-execution by means of the only method of
execution that existed in the State of California at the material time of
extradition.
E. Individual opinion submitted by Mr. Kurt Herndl (dissenting)
1. While I do agree with the Committee's finding that there is no violation
of article 6 of the Covenant in the present case, I do not share the
majority's findings as to a possible violation of article 7. In fact, I
completely disagree with the conclusion that Canada which - as the
Committee's majority argue in paragraph 16.4 of the views - "could
reasonably foresee that Mr. Ng, if sentenced to death, would be executed in
a way that amounts to a violation of article 7", has thus "failed to comply
with its obligations under the Covenant by extraditing Mr. Ng without having
sought and received guarantees that he would not be executed".
2. The following are the reasons for my dissent.
Mr. Ng cannot be regarded as victim in the sense of article 1 of the
Optional Protocol
3. The issue of whether Mr. Ng can or cannot be regarded as a victim was
left open in the decision on admissibility (decision of 28 October 1992).
There the Committee observed that pursuant to article 1 of the Optional
Protocol, it may only receive and consider communications from individuals
subject to the jurisdiction of a State party to the Covenant and to the
Optional Protocol "who claim to be victims of a violation by that State
party of any of their rights set forth in the Covenant". In the present
case, the Committee concluded that only the consideration on the merits of
the circumstances under which the extradition procedure and all its effects
occurred, would enable it to determine whether the author was a victim
within the meaning of article 1 of the Optional Protocol. Accordingly the
Committee decided to join the question of whether the author is a victim to
the consideration of the merits. So far so good.
4. In its views, however, the Committee does no longer address the issue of
whether Mr. Ng is a victim. In this connection, the following reasoning has
to be made.
5. As to the concept of victim, the Committee has in recent decisions
recalled its established jurisprudence, based on the admissibility decision
in the case of E. W. et al. v. the Netherlands (case No. 429/1990), where
the Committee declared the relevant communication inadmissible under the
Optional Protocol. In the case mentioned, the Committee held that "for a
person to claim to be a victim of a violation of a right protected by the
Covenant, he or she must show either that an act or an omission of a State
party has already adversely affected his or her enjoyment of such right, or
that such an effect is imminent".
6. In the case of John Kindler v. Canada (communication No. 470/1991) the
Committee has, in its admissibility decision (decision of 31 July 1992),
somewhat expanded on the notion of victim by stating that while a State
party clearly is not required to guarantee the rights of persons within
another jurisdiction, if such a State party takes a decision relating to a
person within its jurisdiction, and the necessary and foreseeable
consequence is that this person's rights under the Covenant will be violated
in another jurisdiction, the State party itself may be in violation of the
Covenant. To illustrate this, the Committee referred to the "handing over of
a person to another State ... where treatment contrary to the Covenant is
certain or is the very purpose of the handing over" (paragraph 6.4). In the
subsequent decision on the merits of the Kindler case (decision of 30 July
1993), the Committee introduced the concept of "real risk". The Committee
stated that "if a State party extradites a person within its jurisdiction in
circumstances such that as a result there is a real risk that his or her
rights under the Covenant will be violated in another jurisdiction, the
State party may be in violation of the Covenant" (paragraph 13.2).
7. The case of Mr. Ng apparently meets none of these tests; neither can it
be argued that torture or cruel, inhuman or degrading treatment or
punishment (in the sense of article 7 of the Covenant) in the receiving
State is the necessary and foreseeable consequence of Mr. Ng's extradition,
nor can it be maintained that there would be a real risk of such treatment.
8. Mr. Ng is charged in California with 19 criminal counts, including
kidnapping and 12 murders, committed in 1984 and 1985. However, he has so
far not been tried, convicted or sentenced. If he were convicted, he would
still have various opportunities to appeal his conviction and sentence
through state and federal appeals instances, up to the Supreme Court of the
United States. Furthermore, given the nature of the crimes allegedly
committed by Mr. Ng it is completely open at this stage whether or not the
death penalty will be imposed, as a plea of insanity could be entered and
might be successful.
9. In their joint individual opinion on the admissibility of a similar case
(not yet made public) several members of the Committee, including myself,
have again emphasized that the violation that would affect the author
personally in another jurisdiction must be a necessary and foreseeable
consequence of the action of the defendant State. As the author in that case
had not been tried and, a fortiori, had not been found guilty or recommended
to the death penalty, the dissenting members of the Committee were of the
view that the test had not been met.
10. In view of what is explained in the preceding paragraphs, the same
consideration would hold true for the case of Mr. Ng, who thus cannot be
regarded as victim in the sense of article 1 of the Optional Protocol.
There are no secured elements to determine that execution by gas
asphyxiation would in itself constitute a violation of article 7 of the
Covenant
11. The Committee's majority is of the view that judicial execution by gas
asphyxiation, should the death penalty be imposed on Mr. Ng, would not meet
the test of the "least possible physical and mental suffering", and thus
would constitute cruel and inhuman treatment in violation of article 7 of
the Covenant (paragraph 16.4). The Committee's majority thus attempts to
make a distinction between various methods of execution.
12. The reasons for the assumption that the specific method of execution
currently applied in California would not meet the above-mentioned test of
the "least possible physical and mental suffering" - this being the only
reason given to substantiate the finding of a violation of article 7 - is
that "execution by gas asphyxiation may cause prolonged suffering and agony
and does not result in death as swiftly as possible, as asphyxiation by
cyanide gas may take over 10 minutes" (paragraph 16.3).
13. No scientific or other evidence is quoted in support of this dictum.
Rather, the onus of proof is placed on the defendant State, which, in the
majority's view, had the opportunity to refute the allegations of the author
on the facts, but failed to do so. This view is simply incorrect.
14. As the fact sheets of the case show, the remarks by the Government of
Canada on the sub-issue "death penalty as a violation of article 7" total
two and a half pages. In those remarks, the Government of Canada states,
inter alia, the following:
"While it may be that some methods of execution would clearly violate the
Covenant, it is far from clear from a review of the wording of the Covenant
and the comments and jurisprudence of the Committee, what point on the
spectrum separates those methods of judicial execution which violate article
7 and those which do not".
15. This argument is in line with the view of Professor Cherif Bassiouni,
who, in his analysis of what treatment could constitute "cruel and unusual
punishment", comes to the following conclusion:
"The wide divergence in penological theories and standards of treatment of
offenders between countries is such that no uniform standard exists ... the
prohibition against cruel and unusual punishment can be said to constitute a
general principle of international law because it is so regarded by the
legal system of civilized nations, but that alone does not give it a
sufficiently defined content bearing on identifiable applications capable of
more than general recognition". [FN15]
-------------------------------------------------------------------------------------------------------------------------------[FN15]
Cherif Bassiouni, International Extradition and World Public Order (Dobbs
Ferry, Leyden, 1974), p. 465.
---------------------------------------------------------------------------------------------------------------------
16. In its submission, the Government of Canada furthermore stressed that
"none of the methods currently in use in the United States is of such a
nature as to constitute a violation of the Covenant or any other norm of
international law. In particular, there is no indication that cyanide gas
asphyxiation, which is the method of judicial execution in the State of
California, is contrary to the Covenant or international law". Finally, the
Government of Canada stated that it had examined "the method of execution
for its possible effect on Ng on facts specified to him" and that it came to
the conclusion that "there are no facts with respect to Ng which take him
out of the general application outlined". In this context, the Government
made explicit reference to the Safeguards Guaranteeing Protection of Those
Facing the Death Penalty adopted by the Economic and Social Council in its
resolution 1984/50 of 25 May 1984 and endorsed by the General Assembly in
resolution 39/118 of 14 December 1984. The Government of Canada has thus
clearly taken into account a number of important elements in its assessment
of whether the method of execution in California might constitute inhuman or
degrading treatment.
17. It is also evident from the foregoing that the defendant State has
examined the whole issue in depth and did not deal with it in the cursory
manner suggested in paragraph 16.3 of the Committee's views. The author and
his counsel were perfectly aware of this. Already in his letter of 26
October 1989 addressed to the author's counsel, the Minister of Justice of
Canada stated as follows:
"You have argued that the method employed to carry out capital punishment in
California is cruel and inhuman, in itself. I have given consideration to
this issue. The method used by California has been in place for a number of
years and has found acceptance in the courts of the United States".
18. Apart from the above considerations, which in my view demonstrate that
there is no agreed or scientifically proven standard to determine that
judicial execution by gas asphyxiation is more cruel and inhuman than other
methods of judicial execution, the plea of the author's counsel contained in
his submission to the Supreme Court of Canada (prior to Ng's extradition)
which was made available to the Committee, in favour of "lethal injection"
(as opposed to "lethal gas") speaks for itself.
19. The Committee observes in the present views (paragraph 15.3) - and it
has also held in the Kindler case (paragraph 6.4) - that the imposition of
the death penalty (although, if I may add my personal view on this matter,
capital punishment is in itself regrettable under any point of view and is
obviously not in line with fundamental moral and ethic principles prevailing
throughout Europe and other parts of the world) is still legally permissible
under the Covenant. Logically, therefore, there must be methods of execution
that are compatible with the Covenant. Although any judicial execution must
be carried out in such a way as to cause the least possible physical and
mental suffering (see the Committee's general comment 20 (44) on article 7
of the Covenant), physical and mental suffering will inevitably be one of
the consequences of the imposition of the death penalty and its execution.
To attempt to establish categories of methods of judicial executions, as
long as such methods are not manifestly arbitrary and grossly contrary to
the moral values of a democratic society and as long as such methods are
based on a uniformly applicable legislation adopted by democratic processes,
is futile, as it is futile to attempt to quantify the pain and suffering of
any human being subjected to capital punishment. In this connection I should
also like to refer to the considerations advanced in paragraph 9 of the
joint individual opinion submitted by Mr. Waleed Sadi and myself in the
Kindler case (decision of 30 July 1993, appendix).
20. It is therefore only logical that I also agree with the individual
opinion expressed by a number of members of the Committee and attached to
the present views. Those members conclude that the Committee should not go
into details in respect of executions as to whether acute pain of limited
duration or less pain of longer duration is preferable and could be a
criterion for the finding of a violation.
21. The Committee's finding that the specific method of judicial execution
applied in California is tantamount to cruel and inhuman treatment and that
accordingly Canada violated article 7 of the Covenant by extraditing Mr. Ng
to the United States, is therefore, in my view, without a proper basis.
In the present case the defendant State, Canada, has done its level best to
respect its obligations under the Covenant
22. A final word ought to be said as far as Canada's obligations under the
Covenant are concerned.
23. While recent developments in the jurisprudence of international organs
entrusted with the responsibility of ensuring that individuals' human rights
are fully respected by State authorities, suggest an expansion of their
monitoring role (see, for example, the judgment of the European Court of
Human Rights in the Soering case, paragraph 85; see also, in this context,
the remarks on the expanded notion of "victim", paragraph 6 above), the
issue of the extent to which, in the area of extradition, a State party to
an international human rights treaty must take into account the situation in
a receiving State, still remains an open question. I should, therefore, like
to repeat what I stated together with Mr. Waleed Sadi in the joint
individual opinion in the Kindler case (decision of 30 July 1993, appendix).
The same considerations are applicable in the present case.
24. We observed in paragraph 5 of the joint individual opinion that the
allegations of the author concerned hypothetical violations of his rights in
the United States (after the legality of the extradition had been tested in
Canadian Courts, including the Supreme Court of Canada), and unreasonable
responsibility was being placed on Canada by requiring it to defend, explain
or justify before the Committee the United States system of administration
of justice. I continue to believe that such is indeed unreasonable. Both at
the level of the judiciary as well as at the level of administrative
proceedings, Canada has given all aspects of Mr. Ng's case the consideration
they deserve in the light of its obligations under the Covenant. It has done
what can reasonably and in good faith be expected from a State party.
F. Individual opinion submitted by Mr. Nisuke Ando (dissenting)
I am unable to concur with the views of the Committee that "execution by gas
asphyxiation ... would not meet the test of 'least possible physical and
mental suffering' and constitutes cruel and inhuman [punishment] in
violation of article 7 of the Covenant" (paragraph 16.4). In the view of the
Committee "the author has provided detailed information that execution by
gas asphyxiation may cause prolonged suffering and agony and does not result
in death as swiftly as possible, as asphyxiation by cyanide gas may take
over 10 minutes" (paragraph 16.3). Thus, the swiftness of death seems to be
the very criterion by which the Committee has concluded that execution by
gas asphyxiation violates article 7.
In many of the States parties to the Covenant where the death penalty has
not been abolished, other methods of execution such as hanging, shooting,
electrocution or injection of certain materials are used. Some of them may
take a longer time and others shorter than gas asphyxiation, but I wonder
if, irrespective of the kind and degree of suffering inflicted on the
executed, all those methods that may take over ten minutes are in violation
of article 7 and all others that take less are in conformity with it. In
other words, I consider that the criteria of permissible suffering under
article 7 should not solely depend on the swiftness of death.
The phrase "least possible physical and mental suffering" comes from the
Committee's general comment 20 (44) on article 7, which states that the
death penalty must be carried out in such a way as to cause the least
possible physical and mental suffering. This statement, in fact, implies
that there is no method of execution which does not cause any physical or
mental suffering and that every method of execution is bound to cause some
suffering.
However, I must admit that it is impossible for me to specify which kind of
suffering is permitted under article 7 and what degree of suffering is not
permitted under the same article. I am totally incapable of indicating any
absolute criterion as to the scope of suffering permissible under article 7.
What I can say is that article 7 prohibits any method of execution which is
intended for prolonging suffering of the executed or causing unnecessary
pain to him or her. As I do not believe that gas asphyxiation is so
intended, I cannot concur with the Committee's view that execution by gas
asphyxiation violates article 7 of the Covenant.
G. Individual opinion submitted by Mr. Francisco José Aguilar Urbina
(dissenting)
Extradition and the protection afforded by the Covenant
1. In analysing the relationship between the Covenant and extradition, I
cannot agree with the Committee that "extradition as such is outside the
scope of application of the Covenant" (views, para. 6.1). I consider that it
is remiss - and even dangerous, as far as the full enjoyment of the rights
set forth in the Covenant is concerned - to make such a statement. In order
to do so, the Committee relies on the pronouncement in the Kindler case to
the effect that since "it is clear from the travaux préparatoires that it
was not intended that article 13 of the Covenant, which provides specific
rights relating to the expulsion of aliens lawfully in the territory of a
State party, should detract from normal extradition arrangements", [FN16]
extradition would remain outside the scope of the Covenant. In the first
place, we have to note that extradition, even though in the broad sense it
would amount to expulsion, in a narrow sense would be included within the
procedures regulated by article 14 of the Covenant. Although the procedures
for ordering the extradition of a person to the requesting State vary from
country to country, they can roughly be grouped into three general
categories: (a) a purely judicial procedure, (b) an exclusively
administrative procedure, or (c) a mixed procedure involving action by the
authorities of two branches of the State, the judiciary and the executive.
This last procedure is the one followed in Canada. The important point,
however, is that the authorities dealing with the extradition proceedings
constitute, for this specific case at least, a "tribunal" that applies a
procedure which must conform to the provisions of article 14 of the
Covenant.
-------------------------------------------------------------------------------------------------------------------------------[FN16]
Official Records of the General Assembly, Forty-eighth Session, Supplement
No. 40 (A/48/40), annex XII.U, communication No. 470/1991 (Joseph Kindler v.
Canada), views adopted on 30 July 1993, para. 6.6.
-------------------------------------------------------------------------------------------------------------------------------
2.1 The fact that the drafters of the International Covenant on Civil and
Political Rights did not include extradition in article 13 is quite logical,
but on that account alone it cannot be affirmed that their intention was to
leave extradition proceedings outside the protection afforded by the
Covenant. The fact is, rather, that extradition does not fit in with the
legal situation defined in article 13. The essential difference lies, in my
opinion, in the fact that this rule refers exclusively to the expulsion of
"an alien lawfully in the territory of a State party".
2.2 Extradition is a kind of "expulsion" that goes beyond what is
contemplated in the rule. Firstly, extradition is a specific procedure,
whereas the rule laid down in article 13 is of a general nature; however,
article 13 merely stipulates that expulsion must give rise to a decision in
accordance with law, and it is even permissible - in cases where there are
compelling reasons of national security - for the alien not to be heard by
the competent authority or to have his case reviewed. Secondly, whereas
expulsion constitutes a unilateral decision by a State, grounded on reasons
that lie exclusively within the competence of that State - provided that
they do not violate the State's international obligations, such as those
under the Covenant - extradition constitutes an act based upon a request by
another State. Thirdly, the rule in article 13 relates exclusively to aliens
who are in the territory of a State party to the Covenant, whereas
extradition may relate both to aliens and to nationals; indeed, on the basis
of its discussions, the Committee has considered the practice of expelling
nationals (for example, exile) in general (other than under extradition
proceedings) to be contrary to article 12. [FN17] Fourthly, the rule in
article 13 relates to persons who are lawfully in the territory of a
country. In the case of extradition, the individuals against whom the
proceedings are initiated are not necessarily lawfully within the
jurisdiction of a country; on the contrary - and especially if it is borne
in mind that article 13 leaves the question of the lawfulness of the alien's
presence to national law - in a great many instances, persons who are
subject to extradition proceedings have entered the territory of the
requested State illegally, as in the case of the author of the
communication.
-------------------------------------------------------------------------------------------------------------------------------[FN17]
In this connection, see the summary records of the Committee's recent
discussions regarding Zaire and Burundi, in relation to the expulsion of
nationals, and Venezuela in relation to the continuing existence, in
criminal law, of exile as a penalty.
-------------------------------------------------------------------------------------------------------------------------------
3. Although extradition cannot be considered to be a kind of expulsion
within the meaning of article 13 of the Covenant, this does not imply that
it is excluded from the scope of the Covenant. Extradition must be strictly
adapted in all cases to the rules laid down in the Covenant. Thus the
extradition proceedings must follow the rules of due process as required by
article 14 and, furthermore, their consequences must not entail a violation
of any other provision. Therefore, a State cannot allege that extradition is
not covered by the Covenant in order to evade the responsibility that would
devolve upon it for the possible absence of protection of the possible
victim in a foreign jurisdiction.
The extradition of the author to the United States of America
4. In this particular case, Canada extradited the author of the
communication to the United States of America, where he was to stand trial
on 19 criminal counts, including 12 murders. It will have to be seen - as
the Committee stated in its decision on the admissibility of the
communication - whether Canada, in granting Mr. Ng's extradition, exposed
him, necessarily and foreseeably, to a violation of the Covenant.
5. The same State party argued that "the author cannot be considered a
victim within the meaning of the Optional Protocol, since his allegations
are derived from assumptions about possible future events, which may not
materialize and which are dependent on the law and actions of the
authorities of the United States" (views, para. 4.2). Although it is
impossible to predict a future event, it must be understood that whether or
not a person is a victim depends on whether that event is foreseeable - or,
in other words, on whether, according to common sense, it may happen, in the
absence of exceptional events that prevent it from occurring - or necessary
- in other words, it will inevitably occur, unless exceptional events
prevent it from happening. The Committee itself, in concluding that Canada
had violated article 7 (views, para. 17), found that the author of the
communication would necessarily and foreseeably be executed. For that
reason, I shall not discuss the issue of foreseeability and necessity except
to say that I agree with the views of the majority.
6. Now, with regard to the exceptional circumstances mentioned by the State
party (views, para. 4.4), the most important aspect is that, according to
the assertions of the State party itself, they refer to the application of
the death penalty. In my opinion, the vital point is the link between the
application of the death penalty and the protection given to the lives of
persons within the jurisdiction of the State of Canada. For those persons,
the death penalty constitutes, in itself, a special circumstance. For that
reason - and in so far as the death penalty can be considered as being
necessarily and foreseeably applicable - Canada had a duty to seek
assurances that Charles Chitat Ng would not be executed.
7. The problem that arises with the extradition of the author of the
communication to the United States without any assurances having been
requested is that he was deprived of the enjoyment of his rights under the
Covenant. Article 6, paragraph 2, of the Covenant, although it does not
prohibit the death penalty, cannot be understood as an unrestricted
authorization for it. In the first place, it has to be viewed in the light
of paragraph 1, which declares that every human being has the inherent right
to life. It is an unconditional right admitting of no exception. In the
second place, it constitutes - for those States which have not abolished the
death penalty - a limitation on its application, in so far as it may be
imposed only for the most serious crimes. For those States which have
abolished the death penalty it represents an insurmountable barrier. The
spirit of this article is to eliminate the death penalty as a punishment,
and the limitations which it imposes are of an absolute nature.
8. In this connection, when Mr. Ng entered Canadian territory he already
enjoyed an unrestricted right to life. By extraditing him without having
requested assurances that he would not be executed, Canada denied him the
protection which he enjoyed and exposed him necessarily and foreseeably to
being executed in the opinion of the majority of the Committee, which I
share in this regard. Canada has therefore violated article 6 of the
Covenant.
9. Further, Canada's misinterpretation of the rule in article 6, paragraph
2, of the International Covenant on Civil and Political Rights raises the
question of whether it has also violated article 5, specifically paragraph 2
thereof. The Government of Canada has interpreted article 6, paragraph 2, as
authorizing the death penalty. For that reason, it has found that Mr.
Charles Chitat Ng's extradition, even though he will necessarily be
sentenced to death and will foreseeably be executed, would not be prohibited
by the Covenant, since the latter would authorize the application of the
death penalty. In making such a misinterpretation of the Covenant, the State
party asserts that the extradition of the author of the communication would
not be contrary to the Covenant. In this connection, Canada has denied Mr.
Charles Chitat Ng a right which he enjoyed under its jurisdiction, adducing
that the Covenant would give a lesser protection than internal law - in
other words, that the International Covenant on Civil and Political Rights
would recognize the right to life in a lesser degree than Canadian
legislation. In so far as the misinterpretation of article 6, paragraph 2,
has led Canada to consider that the Covenant recognizes the right to life in
a lesser degree than its domestic legislation and has used that as a pretext
to extradite the author to a jurisdiction where he will certainly be
executed, Canada has also violated article 5, paragraph 2, of the Covenant.
10. I have to insist that Canada has misinterpreted article 6, paragraph 2,
and that, when it abolished the death penalty, it became impossible for it
to apply that penalty directly in its territory, except for the military
offences for which it is still in force, or indirectly through the handing
over to another State of a person who runs the risk of being executed or who
will be executed. Since it abolished the death penalty, Canada has to
guarantee the right to life of all persons within its jurisdiction, without
any limitation.
11. With regard to the possible violation of article 7 of the Covenant, I do
not concur with the Committee's finding that "in the instant case and on the
basis of the information before it, the Committee concludes that execution
by gas asphyxiation, should the death penalty be imposed on the author,
would not meet the test of least possible physical and mental suffering and
constitutes cruel and inhuman treatment, in violation of article 7 of the
Covenant" (views, para. 16.4). I cannot agree with the view that the
execution of the death penalty constitutes cruel and inhuman treatment only
in these circumstances. On the contrary, I consider that the death penalty
as such constitutes treatment that is cruel, inhuman and degrading and hence
contrary to article 7 of the International Covenant on Civil and Political
Rights. Nevertheless, in the present case, it is my view that the
consideration of the application of the death penalty is subsumed by the
violation of article 6, and I do not find that article 7 of the Covenant has
been specifically violated.
12. One final aspect to be dealt with is the way in which Mr. Ng was
extradited. No notice was taken of the request made by the Special
Rapporteur on New Communications, under rule 86 of the rules of procedure of
the Human Rights Committee, that the author should not be extradited while
the case was under consideration by the Committee. On ratifying the Optional
Protocol, Canada undertook, with the other States parties, to comply with
the procedures followed in connection therewith. In extraditing Mr. Ng
without taking into account the Special Rapporteur's request, Canada failed
to display the good faith which ought to prevail among the parties to the
Protocol and the Covenant.
13. Moreover, this fact gives rise to the possibility that there may also
have been a violation of article 26 of the Covenant. Canada has given no
explanation as to why the extradition was carried out so rapidly once it was
known that the author had submitted a communication to the Committee. By its
action in failing to observe its obligations to the international community,
the State party has prevented the enjoyment of the rights which the author
ought to have had as a person under Canadian jurisdiction in relation to the
Optional Protocol. In so far as the Optional Protocol forms part of the
Canadian legal order, all persons under Canadian jurisdiction enjoy the
right to submit communications to the Human Rights Committee so that it may
hear their complaints. Since it appears that Mr. Charles Chitat Ng was
extradited on account of his nationality, [FN18] and in so far as he has
been denied the possibility of enjoying its protection in accordance with
the Optional Protocol, I find that the State party has also violated article
26 of the Covenant.
-------------------------------------------------------------------------------------------------------------------------------[FN18]
The various passages in the reply which refer to the relations between
Canada and the United States, the 4,800 kilometres of unguarded frontier
between the two countries and the growing number of extradition applications
by the United States to Canada should be taken into account. The State party
has indicated that United States fugitives cannot be permitted to take the
non-extradition of the author in the absence of assurances as an incentive
to flee to Canada. In this connection, the arguments of the State party were
identical to those put forward in relation to communication No. 470/1991.
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14. In conclusion, I find Canada to be in violation of articles 5, paragraph
2, 6 and 26 of the International Covenant on Civil and Political Rights.
San Rafael de Escazú, Costa Rica , 1 December 1993
H. Individual opinion submitted by Ms. Christine Chanet
(dissenting)
As regards the application of article 6 in the present case, I can only
repeat the terms of my separate opinion expressed in the case of John
Kindler v. Canada (communication No. 470/1991).
Consequently, I am unable to accept the statement, in paragraph 16.2 of the
decision, that "article 6, paragraph 2, permits the imposition of capital
punishment". In my view, the text of the Covenant does not authorize the
imposition, or restoration, of capital punishment in those countries which
have abolished it; it simply sets conditions with which the State must
necessarily comply when capital punishment exists.
Drawing inferences from a de facto situation cannot, in law, be assimilated
to an authorization.
As regards article 7, I share the Committee's conclusion that this provision
has been violated in the present case.
However, I consider that the Committee engages in questionable discussion
when, in paragraph 16.3, it assesses the suffering caused by cyanide gas and
takes into consideration the duration of the agony, which it deems
unacceptable when it lasts for over 10 minutes.
Should it be concluded, conversely, that the Committee would find no
violation of article 7 if the agony lasted nine minutes?
By engaging in this debate, the Committee finds itself obliged to take
positions that are scarcely compatible with its role as a body monitoring an
international human rights instrument.
A strict interpretation of article 6 along the lines I have set out
previously which would exclude any "authorization" to maintain or restore
the death penalty, would enable the Committee to avoid this intractable
debate on the ways in which the death penalty is carried out in the States
parties. |
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