I United Nations
| Published date | 01 March 1994 |
| Date | 01 March 1994 |
| Author | Jacqueline Smith,Manfred Nowak |
| DOI | 10.1177/016934419401200104 |
| Subject Matter | Part B: Human Rights News |
Part
B:
Human
Rights News
I UNITED NATIONS
A. Human Rights Committee
Geneva, 12 -
30
July 1993
Manfred Nowak
During its 48th session, held at Geneva from 12 to 30 July 1993, the Human Rights
Committee decided on
II
individual communications submitted under the first Optional
Protocol (OP) to the Covenant on Civil and Political Rights (CCPR). In three cases
against Zambia and Peru it expressed its concerns about the absence of cooperation by
these governments and found a violation of one or more provisions of the Covenant. In
two controversial cases concerning Canada and the Netherlands the Committee finally did
not establish a violation. 6 communications (against Finland, the Netherlands, Spain,
Trinidad and Tobago) were declared inadmissible.
Most controversial was the case of Kindler v. Canada (No. 470/1991) which, as the
Soering case under the European Convention, relates to capital punishment in the USA
and the question of whether Canada violated Articles 6 and/or 7 of the Covenant by
having extradited the author to the USA. In 1983 the US citizen Joseph Kindler had been
sentenced to death in Pennsylvania after conviction of first degree murder and kidnapping.
He escaped from custody and was in 1985 arrested in Canada. In 1986 the Minister of
Justice decided to extradite him to the US without seeking assurances from the US
Government that the death penalty will not be imposed, a right conferred upon him by the
1976 Extradition Treaty between Canadaand the US. On 26September 1991 the Supreme
Court of Canada finally decided that the extradition of Mr. Kindler would not violate his
rights under the Canadian Charter of Human Rights, and he was extradited on the same
day.The Committee affirmed in principle that the fact of extraditing a person 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 may amount to a violation of the
Covenant by the extraditing State. In the present case the majority concluded, however,
that the circumstances did not reveal a violation by Canada. With respect to Article 7 the
Committee argued that the specific conditions of detention on death row in Pennsylvania
and the method of execution (lethal injection) did not amount to cruel, inhuman or
degrading treatment or punishment. It explicitly noted that important facts leading to the
judgement of the European Court of Human Rights in the
Soering
case (age and mental
state
of
the offender, conditions on death row, simultaneous request for extradition by an
abolitionist State) did not apply in this case.
With respect to Article 6 the majority opinion took into account that Canada is not a
party to the second OP to the Covenant and that the extradition without seeking assurances
was justified by the Canadian Government with the absence of exceptional circumstances,
the availability of due process, and the 'importance of not providing a safe heaven for
those accused of or found guilty of murder' .
7 of the 18 Committee members dissented and formulated a total of 6 individual
opinions. Mr. Herndl and Mr. Sadi, on the one hand, concluded that the communication
'raises only remote issues under the Covenant' and therefore should be declared
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