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1. The author of the
communication is Joseph Kindler, a citizen of the United States of America,
born in 1961, at the time of his submission detained in a penitentiary in
Montreal, Canada, and on 26 September 1991 extradited to the United States.
He claims to be a victim of a violation of articles 6, 7, 9, 10, 14 and 26
of the International Covenant on Civil and Political Rights. He is
represented by counsel.
2.1 In November 1983 the author was convicted in the State of Pennsylvania,
United States, of first degree murder and kidnapping; the jury recommended
the death sentence. According to the author, this recommendation is binding
on the court. In September 1984, prior to sentencing, the author escaped
from custody. He was arrested in the province of Quebec in April 1985. In
July 1985 the United States requested and in August 1985 the Superior Court
of Quebec ordered his extradition.
2.2 Article 6 of the 1976 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 in the case of certain
military offences.
2.3 The power to seek assurances that the death penalty will not be imposed
is conferred on the Minister of Justice pursuant to section 25 of the 1985
Extradition Act. On January 17, 1986, after hearing the author's counsel,
the Minister of Justice decided not to seek these assurances.
2.4 The author filed an application for review of the Minister's decision
with the Federal Court, which dismissed the application in January 1987. The
author's appeal to the Court of Appeal was rejected in December 1988. The
matter then came before the Supreme Court of Canada, which decided on 26
September 1991 that the extradition of Mr. Kindler would not violate his
rights under the Canadian Charter of Human Rights. 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, 14 and 26 of the Covenant. He submits that the death penalty per se
constitutes cruel and inhuman treatment or punishment, and that conditions
on death row are cruel, inhuman and degrading. He further alleges that the
judicial procedures in Pennsylvania, inasmuch as they relatespecifically to
capital punishment, do not meet basic requirements of justice. In this
context, the author, who is white, generally alleges racial bias in the
imposition of the death penalty in the United States, without, however,
substantiating how this alleged bias would affect him.
The State party's observations and the author's comments:
4.1 The State party recalls that the author illegally entered the territory
of Canada, where he was arrested in April 1985. It 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]
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]
H. v.d.P. v. the Netherlands , declared inadmissible on 8 April 1987, para.
3.2.
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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 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]
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
unconditional surrender by providing for discretion in obtaining assurances
regarding the death penalty in the same fashion as is found in article 6 of
the Canada-United States Extradition Treaty. 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]
Adopted at the Eighth United Nations Congress on the Prevention of Crime and
the Treatment of Offenders, Havana, 1990; see General Assembly resolution
45/168 of 14 December 1990.
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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. In his reply to the State party's submission, the author maintains that,
since the right to life is at stake, there is no possible argument for
leaving extradition outside the Committee's jurisdiction.
The Committee's admissibility considerations and decision:
6.1 During its 45th session in July 1992, the Committee considered the
admissibility of the communication. It observed that extradition as such is
outside the scope of application of the Covenant [FN5], 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 [FN6] . 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 Committeefound
that the communication was thus not excluded ratione materiae.
-------------------------------------------------------------------------------------------------------------------------------[FN5]
Communication No. 117/1981 ( M.A. v. Italy ), paragraph 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".
[FN6] Aumeeruddy-Cziffra et al. v. Mauritius (No. 35/1978, Views adopted on
9 April 1981) and Torres v. Finland (No. 291/1988, Views adopted on 2 April
1990).
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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 that 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 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 the United
States and Canada, and the Extradition Act of 1985.
6.4 The Committee observed that the Covenant does not prohibit capital
punishment for the most serious crimes provided that certain conditions are
met. Article 7 of the Covenant prohibits torture and cruel, inhuman and
degrading treatment. In respect of the so-called "death row phenomenon" the
Committee recalled its earlier jurisprudence and noted that "prolongued
judicial proceedings do not per se constitute cruel, inhuman and degrading
treatment, even if they can be a source of mental strain for the convicted
persons." [FN7] This also applies to appeal and review proceedings in cases
involving capital punishment, although an assessment of the particular
circumstances of each case would be called for. In States whose judicial
system provides for review of criminal convictions and sentences, an element
of delay between the lawful imposition of a sentence of death and the
exhaustion of available remedies can be necessary to review the sentence.
Thus, even prolonged periods of detention under a strict custodial regime on
death row could not necessarily be considered to constitute cruel, inhuman
and degrading treatment if the convicted person is merely availing himself
of appellate remedies FN8. But each case will depend on its own facts.
-------------------------------------------------------------------------------------------------------------------------------
[FN7] Views on communications Nos. 210/1986 and 225/1987 ( Earl Pratt and
Ivan Morgan v. Jamaica ) adopted on 6 April 1989, paragraph 13.6.
[FN8] Views on communications Nos. 270/1988 and 271/1988 ( Randolph Barrett
& Clyde Sutcliffe v. Jamaica ), adopted on 30 March 1992, paragraph 8.4.
-------------------------------------------------------------------------------------------------------------------------------
6.5 The Committee observed further that article 6 provides a limited
authorization to States to order capital punishment within their own
jurisdiction. It decided to examine on the merits the question whether the
scope of the authorization permitted under article 6 extends also to
allowing foreseeable loss of life by capital punishment in another State,
even one with full procedural guarantees.
6.6 The Committee also found that it is clear from the travaux preparatoires
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. Nonetheless, whether an alien is required to leave the
territory through expulsion or extradition, the general guarantees of
article 13 in principle apply, as do the requirements of the Covenant as a
whole. In this connection the Committee noted that the author, even though
he had unlawfully entered the territory of Canada, had ample opportunity to
present his arguments against extradition before the Canadian courts,
including the Supreme Court of Canada, which considered the facts and the
evidence before it and found that the extradition of the author would not
violate his rights under Canadian or international law. In this context the
Committee reiterated its constant jurisprudence that it is not competent to
re-evaluate the facts and evidence considered by national courts. What the
Committee may do is to verify whether the author was granted all the
procedural safeguards provided for in the Covenant. The Committee concluded
that a careful study of all the material submitted by the author and by the
State party does not reveal arguments that would support a complaint based
on the absence of those guarantees during the course of the extradition
process.
6.7 The Committee also observed that, in principle, lawful capital
punishment under article 6 does not per se raise an issue under article 7.
The Committee considered whether there are nonetheless special circumstances
that in this particular case still raise an issue under article 7. Canadian
law does not provide for the death penalty, except in military cases. Canada
may by virtue of article 6 of the Extradition Treaty seek assurances from
the other State which retains the death penalty, that a capital sentence
shall not be imposed. It may also, under the Treaty, refuse to extradite a
person when such an assurance is not received. While the seeking of such
assurances and the determination as to whether or not to extradite in their
absence is discretionary under the Treaty and Canadian law, these decisions
may raise issues under the Covenant. In particular, the Committee considered
that it might be relevant to know whether the State party satisfied itself,
before deciding not to invoke article 6 of the Treaty, that this would not
involve for the author a necessary and foreseeable violation of his rights
under the Covenant.
6.8 The Committee also found that the methods employed for judicial
execution of a sentence of capital punishment may in a particular case raise
issues under article 7.
7. On 31 July 1992 the Committee decided that the communication was
admissible in as much as it might raise issues under articles 6 and 7 of the
Covenant. The Committee further indicated that, in accordance with rule 93,
paragraph 4, of its rules of procedure, the State party could request a
review of the decision on admissibility at the time of the examination of
the merits of the communication. Two Committee members appended a dissenting
opinion to the decision on admissibility [FN9].
-------------------------------------------------------------------------------------------------------------------------------[FN9]
See Appendix under A.
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The State party's submission on the merits and request for review of
admissibility:
8.1 In its submissions dated 2 April and 26 May 1993, the State party
submits facts on the extradition process in general, on the Canada-United
States extradition relationship and on the specifics of the present case. It
further requests a review of the Committee's decision on admissibility.
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 involving a hearing at which a judge considers
whether a factual and legal basis for extradition exits. The person sought
for extradition may submit evidence at the judicial hearing. If the judge is
satisfied on 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 death penalty cases, the Minister of Justice
decides whether or not to request assurances on the basis of an examination
of the particular facts of each case. The Canada-United States Extradition
Treaty was not intended to make the seeking of assurances a routine
occurrence but 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 "A substantial number of 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, there was no evidence
presented by Kindler during the extradition process in Canada and there is
no evidence in this communication to support the allegations that the use of
the death penalty in the United States generally, or in the State of
Pennsylvania 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 Canada-United States Extradition Treaty
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 twelve 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 83. "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 of 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 respect to Mr. Kindler's case, the State party recalls that he
challenged the warrant of committal and the warrant of 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 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.
9.2 As to the Committee's admissibility decision, the State party reiterates
its argument that the communication is inadmissible ratione materiae because
extradition per se is beyond the scope of the Covenant. A review of the
travaux preparatoires 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 As to the merits, the State party stresses that Mr. Kindler 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 whereas it was reasonably foreseeable that Mr. Kindler would be held in
the State of Pennsylvania subject to a sentence of death, it was not
reasonably foreseeable that he would in fact be put to death or be held in
conditions of incarceration that would violate rights under the Covenant.
The State party points out that Mr. Kindler 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.
9.4 As 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
judgment 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
judgment of a competent court. Such are not the facts here ... Kindler did
not place any evidence before the Canadian courts, before the Minister of
Justice or before the Committee which 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 Kindler is executed in the State of
Pennsylvania, this will be within the conditions expressly prescribed by
article 6 of the Covenant. The Government of Canada remains satisfied that
this is so."
9.5 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."
9.6 With respect to the issue 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."
9.7 As to the methods of execution, the State party indicates that the
method of execution in Pennsylvania is lethal injection, which is the method
proposed by those who advocate euthanasia for terminally ill patients. It is
thus at the end of the spectrum of methods designed to cause the least pain.
9.8 As to the "death row phenomenon" the State party submits that each case
must be examined on its facts, including the conditions in the prison in
which the prisoner would be held while on "death row", the age and the
mental and physical condition of the prisoner subject to those conditions,
the reasonably foreseeable length of time the prisoner would besubject to
those conditions, the reasons underlying the length of time and the avenues,
if any, for remedying unacceptable conditions. "Mr. Kindler argued before
the Minister of Justice and in Canadian courts that conditions on 'death
row' in the State of Pennsylvania would amount to a denial of his rights.
His evidence consisted of some testimony and academic journal articles on
the effect that electrocution, as a method of execution, was alleged to have
on the psychological state of prisoners held on death row. He did not
present evidence on the facilities or prison routines in the State of
Pennsylvania ... he did not present evidence on his plans to contest the
death sentence in the United States and the expected length of time he would
be held awaiting a final answer from the courts of the United States. He did
not present evidence that he intended to seek a commutation of his sentence.
The evidence he did tender was considered by the courts and by the Minister
of Justice but was judged insubstantial and therefore insufficient to
reverse the premises underlying the extradition relationship in existence
between Canada and the United States. The Government of Canada submits that
the Minister of Justice and the Canadian courts in the course of the
extradition process in Canada, with its two phases of decision-making and
avenues for judicial review, examined and weighed all the allegations and
facts presented by Kindler. The Minister of Justice, in deciding to
surrender Kindler to face the possible imposition of the death penalty,
considered all the factors. The Minister was not convinced on the evidence
that the conditions of incarceration in the State of Pennsylvania, when
considered with the reasons for the delay and the continuing access to the
courts in the United States, would violate the rights of Kindler, either
under the Canadian Charter of Rights and Freedoms or under the Covenant. The
Canadian Supreme Court upheld the Minister's decision, making it clear that
the decision was not seen as subjecting Kindler to a violation of his
rights... The Minister of Justice and the Canadian courts came to the
conclusion that Kindler would not be subjected to a violation of rights
which can be expressed as 'death row phenomenon'. The Government of Canada
contends that the extradition process and its result in the case of Kindler
satisfied Canada's obligation in respect of the Covenant on this point."
Comments by author's counsel:
10.1 In his comments on the State party's submission, author's counsel
argues that whereas article 6 of the Covenant does foresee the possibility
of the imposition of the death penalty, article 6, paragraph 2, applies only
to countries "which have not abolished the death penalty". Since Canada has
abolished capital punishment in non-military law, the principle applies that
one cannot do indirectly what one cannot do directly, and that Canada was
required to demand guarantees that Mr. Kindler would not be executed and
that he would be treated in accordance with article 7 of the Covenant.
10.2 Author's counsel refers to the factum presented to the Canadian Supreme
Court on Mr. Kindler's behalf. In said factum, the relevant aspects of
Canadian Constitutional and Administrative law are discussed, and the
arguments are said to be applicable mutatis mutandis to articles 6 and 7 of
the Covenant. In paragraphs 38 to 49 of the factum, author's counsel argues
that the United States use of the death penalty is not compatible with the
standards of the Covenant. He refers to a book by Zimring and Hawkings,
Capital Punishment and the American Agenda (1986), which argues the absence
of any deterrent effectand the essentially vengeance-based motives for the
resurgence of capital punishment in the United States. He also quotes
extensively from the judgment of the European Court of Justice in the
Soering v. United Kingdom case. He indicates that while the majority Court
declined to find capital punishment per se cruel and unusual in every case,
it did condemn the death row phenomenon as such. The European Court
concluded:
"For any prisoner condemned to death, some element of delay between
imposition and execution of the sentence and the experience of severe stress
in conditions necessary for strict incarceration are inevitable. The
democratic character of the Virginia legal system in general and the
positive features of the Virginia trial, sentencing and appeal procedures in
particular are beyond doubt. The Court agrees with the Commission that the
machinery of justice to which the applicant would be subject in the United
States is in itself neither arbitrary nor unreasonable, but, rather,
respects the rule of law and affords not inconsiderable procedural
safeguards to the defendant in a capital trial. Facilities are available on
death row for psychiatric services... However, in the Court's view, having
regard to the very long period of time spent on death row in such extreme
conditions, with the ever present and mounting anguish of awaiting execution
of the death penalty, and to the personal circumstances of the applicant,
especially his age and mental state at the time of the offence, the
applicant's extradition to the United States would expose him to a real risk
of treatment going beyond the threshold set by article 3. A further
consideration of relevance is that in the particular instance the legitimate
purpose of extradition could be achieved by another means which would not
involve suffering of such exceptional intensity or duration."
10.3 Counsel further quotes from the concurring opinion of Judge DeMeyer,
arguing that "No State Party to the Convention can in that context, even if
it has not yet ratified the Sixth Protocol, be allowed to extradite any
person if that person thereby incurs the risk of being put to death in the
requesting State."
10.4 Counsel also quotes from numerous articles analysing the Soering
decision, including one by Gino J. Naldi of the University of East Anglia:
"The Court considered whether the death penalty violated article 3. The
Court noted that as originally drafted, the Convention did not seek to
prohibit the death penalty. However, subsequent national practice meant that
few High Contracting Parties now retained it and this was reflected in
Protocol No. 6 which provides for the abolition of the death penalty but
which the United Kingdom has not ratified notwithstanding its virtual
abolition of the death penalty. Yet the very existence of this Protocol led
the Court to the conclusion that article 3 had not developed in such a
manner that it could be interpreted as prohibiting the death penalty...
In the present case the Court found that Soering's fears that he would be
exposed to the 'death row phenomenon' were real... The fact that a condemned
prisoner was subjected to the severe regime of death row in a high security
prison for six to eight years, notwithstanding psychological and psychiatric
services, compounded the problem... The Court was additionally influenced by
Soering's age and mentalcondition. Soering was eighteen years old at the
time of the murders in 1985 and in view of a number of international
instruments prohibiting the imposition of the death penalty on minors ...
the Court expressed the opinion that a general principle now exists that the
youth of a condemned person is a significant factor to be taken into
account... Another factor the Court found relevant was psychiatric evidence
that Soering was mentally disturbed at the time of the crime. The Court was
also influenced by the fact that Soering's extradition was sought by the
Federal Republic of Germany whose constitution allows its nationals to be
tried for offences committed in other countries but prohibits the death
penalty. Soering could therefore be tried for his alleged crimes without
being exposed to the 'death row phenomenon' [FN10].
-------------------------------------------------------------------------------------------------------------------------------[FN10]
Gino J. Naldi, Death Row Phenomenon Held Inhuman Treatment , The Review
(International Commission of Jurists), December 1989, at pp. 61-62.
-------------------------------------------------------------------------------------------------------------------------------
10.5 Counsel contests the argument by the State party that Mr. Kindler was
not a minor at the time of the offence. "It is not sufficient to state that
Mr. Kindler is not a minor and is charged with a serious offence because in
a society in which minors and mentally defective citizens can be executed,
the access to a pardon is almost non-existent for someone like Mr. Kindler;
yet the right to apply for pardon is an essential one in the Covenant."
10.6 Counsel further contends that the Canadian Minister of Justice did not
consider the issue of the "death row phenomenon" or the period of time or
the conditions of "death row".
10.7 He points to works of law and political science favouring abolition,
which are permeated by the horror at the thought of execution and the sense
of cruelty which always accompanies it.
10.8 The fact that the Covenant provides for capital punishment for serious
offenses does not prevent an evolution in the interpretation of the law. "By
now capital punishment must be viewed as per se cruel and unusual, and as a
violation of Sec. 6 and 7 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; thus except for those unusual cases, the Covenant does not
authorize it. In this context, executing Mr. Kindler would by itself be a
violation of Sec. 6 and 7 and he should not have been extradited without
guarantees."
10.9 With regard to Canada's argument that it does not wish to become a
haven for foreign criminals, counsel contends that there is no proof that
this would happen, nor was such proof advanced at any time in the
proceedings.
11. As to the admissibility of the communication, counsel rejects the State
party's arguments as unfounded. In particular, he contends that "it is not
logical to exclude extradition from the Covenant or to require certainty of
execution as Canada suggests ... law almost never deals with certainties but
only with probabilities and possibilities." He stresses "that there is
plenty of evidence that, with respect to the death sentence, the legal
system of theUnited States is not in conformity with the Covenant and that
therefore, applying its own principles ..., Canada should have considered
all the issues raised by Mr. Kindler. It is thus not possible for Canada to
argue that Mr. Kindler's petition was inadmissible; he alleged Canada's
repeated violation of the Covenant, not that of the United States; that the
American system might be indirectly affected is no concern for Canada."
Review of admissibility and consideration of merits:
12.1 In his initial submission author's counsel claimed that Mr. Kindler was
a victim of violations of articles 6, 7, 9, 10, 14 and 26 of the Covenant.
12.2 When the Committee, at its forty-fifth session, examined the
admissibility of the communication, it found some of the author's
allegations unsubstantiated and therefore inadmissible; it further
considered that the communication raised new and complex questions 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
concrete application in the present case. It therefore declared the
communication admissible inasmuch as it might raise issues under articles 6
and 7 of the Covenant. The State party has made extensive new submissions on
both admissibility and merits and requested, pursuant to rule 93, paragraph
4, of the Committee's rules of procedure, a review of the Committee's
decision on admissibility.
12.3 In reviewing its decision on admissibility, the Committee takes note of
the objections of the State party and of the arguments by author's counsel
in this respect. The Committee observes that with regard to the scope of
articles 6 and 7 of the Covenant, the Committee's jurisprudence is not
dispositive on issues of admissibility such as those raised in the instant
communication. Therefore, the Committee considers that an examination on the
merits of the communication 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 capital
punishment.
13.1 Before examining the merits of this communication, the Committee
observes that, as indicated in the admissibility decision, what is at issue
is not whether Mr. Kindler's rights have been or are likely to be violated
by the United States, which is not a party to the Optional Protocol, but
whether by extraditing Mr. Kindler 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 often also be party to various bilateral
obligations, including those under extradition treaties. A State party to
the Covenant is required to ensure that it carries out all its other legal
commitments in a manner consistent with the Covenant. The starting point for
an examination of this issue must be the obligation of the State party 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.13.2 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 itself may be in violation of the Covenant.
14.1 With regard to a possible violation by Canada of article 6 the Covenant
by its decision to extradite the author, 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 (that is to say, a necessary and foreseeable consequence) of
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. Kindler?
14.2 As to (a), the Committee recalls its General Comment on Article 6
[FN11], which provides that while States parties are not obliged to abolish
the death penalty totally, they are obliged to limit its use. The General
Comment further notes that the terms of article 6 also point to the
desirability of abolition of the death penalty. This is an object towards
which ratifying parties should strive: "All measures of abolition should be
considered as progress in the enjoyment of the right to life". Moreover, the
Committee notes the evolution of international law and the trend towards
abolition, as illustrated by the adoption by the United Nations General
Assembly of the Second Optional Protocol to the International Covenant on
Civil and Political Rights. Furthermore, even where capital punishment is
retained by States in their legislation, many of them do not exercise it in
practice.
-------------------------------------------------------------------------------------------------------------------------------[FN11]
General Comment No. 6[16] of 27 July 1982, para. 6.
-------------------------------------------------------------------------------------------------------------------------------
14.3 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 itself did not impose the
death penalty on Mr. Kindler, but extradited him to the United States, where
he faced capital punishment. If Mr. Kindler had been exposed, through
extradition from Canada, to a real risk of a violation of article 6,
paragraph 2, in the United States, that 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, in circumstances not contrary to
the Covenant and other instruments, and that it be carried out pursuant to a
final judgment rendered by a competent court. The Committee notes that Mr.
Kindler was convicted of premeditated murder, undoubtedly a very serious
crime. He was over 18 years of age when the crime was committed. The author
has not claimed before the Canadian courts or before the Committee that the
conduct of the trial in the Pennsylvania court violated his rights to a fair
hearingunder article 14 of the Covenant.
14.4 Moreover, the Committee observes that Mr. Kindler was extradited to the
United States following extensive proceedings in the Canadian Courts, which
reviewed all the evidence submitted concerning Mr. Kindler's trial and
conviction. In the circumstances, the Committee finds that the obligations
arising under article 6, paragraph 1, did not require Canada to refuse the
author's extradition.
14.5 The Committee notes that Canada has itself, save 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 question (b),
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 the abolition of
capital punishment does not release Canada of its obligations under
extradition treaties. However, it is in principle to be expected that, when
exercising a permitted discretion under an extradition treaty (namely,
whether or not to seek assurances that capital punishment will not be
imposed) a State which has itself abandoned capital punishment would give
serious consideration to its own chosen policy in making its decision. The
Committee observes, however, that the State party has indicated that the
possibility to seek assurances would normally be exercised where exceptional
circumstances existed. Careful consideration was given to this possibility.
14.6 While States must be mindful of the possibilities for the protection of
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. Kindler would
have violated Canada's obligations under article 6 of the Covenant, if the
decision to extradite without assurances would have been taken arbitrarily
or summarily. The evidence before the Committee reveals, however, that the
Minister of Justice reached a decision after hearing argument in favor of
seeking assurances. The Committee further takes note of the reasons given by
Canada not to seek assurances in Mr. Kindler's case, in particular, the
absence of exceptional circumstances, the availability of due process, and
the importance of not providing a safe haven for those accused of or found
guilty of murder.
15.1 As regards the author's claims that Canada violated article 7 of the
Covenant, this provision must be read in the light of other provisions of
the Covenant, including article 6, paragraph 2, which does not prohibit the
imposition of the death penalty in certain limited circumstances.
Accordingly, capital punishment as such, within the parameters of article 6,
paragraph 2, does not per se violate article 7.
15.2 As to whether the "death row phenomenon" associated with capital
punishment, constitutes a violation of article 7, the Committee recalls its
jurisprudence to the effect that "prolonged periods of detention under a
severe custodial regime on death row cannot generally be considered to
constitute cruel, inhuman or degrading treatment if the convicted person
ismerely availing himself of appellate remedies." [FN12] The Committee has
indicated that the facts and the circumstances of each case need to be
examined to see whether an issue under article 7 arises.
------------------------------------------------------------------------------------------------------------------------------[FN12]
Howard Martin v. Jamaica, No. 317/1988, Views adopted on 24 March 1993,
paragraph 12.2.
------------------------------------------------------------------------------------------------------------------------------
15.3 In determining whether, in a particular case, the imposition of capital
punishment could constitute 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 this context the Committee
has had careful regard to the judgment given by the European Court of Human
Rights in the Soering v. United Kingdom case [FN13]. It notes that important
facts leading to the judgment of the European Court are distinguishable on
material points from the facts in the present case. In particular, the facts
differ as to the age and mental state of the offender, and the conditions on
death row in the respective prison systems. The author's counsel made no
specific submissions on prison conditions in Pennsylvania, or about the
possibility or the effects of prolonged delay in the execution of sentence;
nor was any submission made about the specific method of execution. The
Committee has also noted in the Soering case that, in contrast to the
present case, there was a simultaneous request for extradition by a State
where the death penalty would not be imposed.
-------------------------------------------------------------------------------------------------------------------------------[FN13]
European Court of Human Rights, judgment of 7 July 1989.
-------------------------------------------------------------------------------------------------------------------------------
16. Accordingly, the Committee concludes that the facts as submitted in the
instant case do not reveal a violation of article 6 of the Covenant by
Canada. The Committee also concludes that the facts of the case do not
reveal a violation of article 7 of the Covenant by Canada.
17. The Committee expresses its regret that the State party did not accede
to the Special Rapporteur's request under rule 86, made in connection with
the registration of the communication on 26 September 1991.
18. The Committee, acting under article 5, paragraph 4, of the Optional
Protocol, finds that the facts before it do not reveal a violation by Canada
of any provision of the International Covenant on Civil and Political
Rights.
The text of 6 individual opinions, signed by 7 Committee members, are
appended to the present document.
Appendix
Individual opinions submitted pursuant to rule 94, paragraph 3,
of the Committee's rules of procedure, concerning the Committee's
views on communication No. 470/1991 (Joseph Kindler v. Canada)
A. Individual opinion by Mr. Kurt Herndl and Mr. Waleed Sadi
(concurring on the merits/dissenting on admissibility)
We fully concur in the Committee's finding that the facts of this case do
not reveal a violation by Canada of any provision of the Covenant. We wish,
however, to repeat our concerns expressed in the dissenting opinion we
appended to the Committee's decision on admissibility of 31 July 1992:
"[...]
3. This communication in its essence poses a threat to the exercise by a
State of its international law obligations under a valid extradition treaty.
Indeed, an examination of the travaux prééparatoires of the Covenant on
Civil and Political Rights reveals that the drafters gave due consideration
to the complex issue of extradition and decided to exclude this issue from
the Covenant, not by accident, but because there were many delegations
opposed to interference with their governments' international law
obligations under extradition treaties.
4. Yet, in the light of the evolution of international law, in particular of
human rights law, following the entry into force of the Covenant in 1976,
the question arises whether under certain exceptional circumstances the
Human Rights Committee could or even should examine matters directly linked
with a State party's compliance with an extradition treaty. Such exceptional
circumstances would be present if, for instance, a person were facing
arbitrary extradition to a country where substantial grounds existed for
believing that he or she could be subjected, for example, to torture. In
other words, the Committee could declare communications involving the
extradition of a person from a State party to another State (irrespective of
whether it is a State party), admissible ratione materiae and ratione loci,
provided that the author substantiated his claim that his basic human rights
would be violated by the country seeking his extradition; this requires a
showing of reasonable cause to believe that such violations would probably
occur. In the communication at bar, the author has not made such a showing,
and the State party has argued that the Extradition Treaty with the United
States is not incompatible with the provisions of the Covenant and that it
complies with the requirements of the Model Treaty on Extradition produced
at the Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, held in Havana in 1990.
5. The majority opinion nevertheless declared this communication admissible,
albeit provisionally, because it views the extradition of the author by
Canada to Pennsylvania as possibly raising issues under articles 6 and 7 of
the Covenant. Yet, the facts as presented to the Committee do not disclose
any probability that violations of the author's Covenant rights by a State
party to the Optional Protocol would occur. As an alien who illegally
entered the territory of Canada, his only link with Canada is that in 1985
he was committed for extradition and that the legality of his extradition
was tested in the Canadian courts and, following due consideration of his
arguments, affirmed by the Supreme Court of Canada in September 1991. The
author does not raise any complaint about a denial of due process in Canada.
His allegations concern hypothetical violations of his rights by the United
States, which is not a State party to the Optional Protocol. In our opinion,
the 'link' with the State party is much too tenuous for the Committee to
declare the communication admissible. Moreover, Mr. Kindler, who was
extradited to the United States in September 1991, is still appealing his
conviction before the Pennsylvania courts. In this connection, an
unreasonable responsibility is being placed on Canada by requiring it to
defend, explain or justify before the Committee the United States system of
administration of justice.
6. Hitherto, the Committee has declared numerous communications
inadmissible, where the authors had failed to substantiate their allegations
for purposes of admissibility. A careful examination of the material
submitted by author's counsel in his initial submission and in his comments
on the State party's submission reveals that this is essentially a case
where a deliberate attempt is made to avoid application of the death
penalty, which still remains a legal punishment under the Covenant. Here the
author has not substantiated his claim that his rights under the Covenant
would, with a reasonable degree of probability, be violated by his
extradition to the United States.
7. As for the issues the author alleges may arise under article 6, the
Committee concedes that the Covenant does not prohibit the imposition of the
death penalty for the most serious crimes. Indeed, if it did prohibit it,
the Second Optional Protocol on the Abolition of the Death Penalty would be
superfluous. Since neither Canada nor the United States is a party to the
Second Optional Protocol, it cannot be expected of either State that they
ask for or that they give assurances that the death penalty will not be
imposed. The question whether article 6, paragraph 2, read in conjunction
with article 6, paragraph 1, could lead to a different conclusion is, at
best, academic and not a proper matter for examination under the Optional
Protocol.
8. As for the issues that may allegedly arise under article 7 of the
Covenant, we agree with the Committee's reference to its jurisprudence in
the views on communications Nos. 210/1986 and 225/1987 (Earl Pratt and Ivan
Morgan v. Jamaica) and Nos. 270 and 271/1988 (Barrett and Sutcliffe v.
Jamaica), in which the Committee decided that the so-called 'death row
phenomenon' does not per se constitute cruel, inhuman and degrading
treatment, even if prolonged judicial proceedings can be a source of mental
strain for the convicted prisoners. In this connection it is important to
note that the prolonged periods of detention on death row are a result of
the convicted person's recourse to appellate remedies. In the instant case
the author has not submitted any arguments that would justify the
Committee's departure from its established jurisprudence.
9. A second issue allegedly arising under article 7 is whether the method of
execution - in the State of Pennsylvania by lethal injection -could be
deemed as constituting cruel, inhuman or degrading treatment. Of course, any
and every form of capital punishment can be seen as entailing a denial of
human dignity; any and every form of execution can be perceived as cruel and
degrading. But, since capital punishment is not prohibited by the Covenant,
article 7 must be interpreted in the light of article 6, and cannot be
invoked against it. The only conceivable exception would be if the method of
execution were deliberately cruel. There is, however, no indication that
execution by lethal injection inflicts more pain or suffering than other
accepted methods of execution. Thus, the author has not made a prima facie
case that execution by lethal injection may raise an issue under article 7.
10. We conclude that the author has failed to substantiate a claim under
article 2 of the Optional Protocol, that the communication raises only
remote issues under the Covenant and therefore that it should be declared
inadmissible under article 3 of the Optional Protocol as an abuse of the
right of submission."
K. Herndl
W. Sadi |
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