carry out a capital sentence as expeditiously as
possible after it was imposed. This is not a message
the Committee would wish to convey to States
parties. Life on death row, harsh as it may be, is
preferable to death. Furthermore, experience shows
that delays in carrying out the death penalty can be
the necessary consequence of several factors, many
of which may be attributable to the State party.
Sometimes a moratorium is placed on executions
while the whole question of the death penalty is
under review. At other times the executive branch of
government delays executions even though it is not
feasible politically to abolish the death penalty. The
Committee would wish to avoid adopting a line of
jurisprudence which weakens the influence of factors
that may very well lessen the number of prisoners
actually executed. It should be stressed that by
adopting the approach that prolonged detention on
death row cannot, per se, be regarded as cruel and
inhuman treatment or punishment under the
Covenant, the Committee does not wish to convey
the impression that keeping condemned prisoners on
death row for many years is an acceptable way of
treating them. It is not. However, the cruelty of the
death row phenomenon is first and foremost a
function of the permissibility of capital punishment
under the Covenant. This situation has unfortunate
consequences.
necessary consequence of imposing the death
penalty, no matter how cruel, degrading and
inhuman it may appear to be, it cannot, of itself, be
regarded as a violation of articles 7 and 10 of the
Covenant.
(b)
While the Covenant does not prohibit
the death penalty, the Committee has taken the
view, which has been reflected in the Second
Optional Protocol to the Covenant, that article 6
"refers generally to abolition in terms which
strongly suggest that abolition is desirable".
Reducing recourse to the death penalty may
therefore be seen as one of the objects and purposes
of the Covenant.
(c)
The provisions of the Covenant must
be interpreted in the light of the Covenant’s objects
and purposes (article 31 of the Vienna Convention
on the Law of Treaties). As one of these objects and
purposes is to promote reduction in the use of the
death penalty, an interpretation of a provision in the
Covenant that may encourage a State party that
retains the death penalty to make use of that penalty
should, where possible, be avoided.
5.4 In light of these factors, the Committee must
examine the implications of holding the length of
detention on death row, per se, to be in violation of
articles 7 and 10. The first, and most serious,
implication is that if a State party executes a
condemned prisoner after he has spent a certain
period of time on death row, it will not be in
violation of its obligations under the Covenant,
whereas if it refrains from doing so, it will violate
the Covenant. An interpretation of the Covenant
leading to this result cannot be consistent with the
Covenant’s object and purpose. The above
implication cannot be avoided by refraining from
determining a definite period of detention on death
row, after which there will be a presumption that
detention on death row constitutes cruel and
inhuman punishment. Setting a cut-off date certainly
exacerbates the problem and gives the State party a
clear deadline for executing a person if it is to avoid
violating its obligations under the Covenant.
However, this implication is not a function of fixing
the maximum permissible period of detention on
death row, but of making the time factor, per se, the
determining one. If the maximum acceptable period
is left open, States parties which seek to avoid
overstepping the deadline will be tempted to look to
the decisions of the Committee in previous cases so as
to determine what length of detention on death row
the Committee has found permissible in the past.
5.6 To accept that prolonged detention on death
row does not per se constitute a violation of articles
7 and 10, paragraph 1, does not imply that other
circumstances connected with detention on death
row may not turn that detention into cruel, inhuman
or degrading treatment or punishment. The
Committee’s jurisprudence has been that where
further compelling circumstances relating to the
detention are substantiated, that detention may
constitute a violation of articles 7 and/or 10,
paragraph 1, of the Covenant.
5.7 In this case, counsel has not alleged the
existence of circumstances, over and above the mere
length of detention, which would have turned the
author’s detention on death row at the State Prison
into a violation of articles 7 and 10, paragraph 1. As
the Committee must, under article 5, paragraph 1, of
the Optional Protocol, consider the communication
in the light of all the information of the parties, the
Committee cannot, in the absence of information on
additional factors, conclude that there has been a
violation of these provisions.
5.8 Regarding the claim under article 14,
paragraph 3 (d), the State party has not denied that
the author was denied legal aid for the purpose of
petitioning the Judicial Committee of the Privy
Council for special leave to appeal. The Committee
recalls that it is imperative that legal aid be available
to a convicted prisoner under sentence of death, and
that this applies to all stages of the legal
5.5 The second implication of making the time
factor per se the determining one, i.e. the factor that
turns detention on death row into a violation of the
Covenant, is that it conveys a message to States
parties retaining the death penalty that they should
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