4. In any event, it cannot be denied that the
provisions of the Covenant should be interpreted in the
light of the object and purpose of this treaty. However,
while I agree that one of the objects and purposes of the
Covenant is to reduce the use of the death penalty, I
believe that that is precisely as a consequence of a greater
purpose, which is to limit the grounds for death sentences
and, ultimately, to abolish the death penalty.
(a) I do not believe that it is possible to project the
future behaviour of a State which has repeatedly refused
to comply with its obligations under article 40 (submission
of periodic reports), since the Committee has been unable
to question the Government authorities on that specific
point;
(b) The ultimate result has been to benefit a State
which, for at least a decade, has refused to comply with its
treaty obligations, giving it the benefit of the doubt with
regard to behaviour which should have been clarified
under the procedure set forth in article 40.
In the case of the present communication, and of
the many which have been submitted against Jamaica
during the last decade, it is regrettable that the State party,
by refusing for the past 10 years to comply with its
obligation to report to the Human Rights Committee under
article 40 of the Covenant, has denied the Committee the
opportunity to pronounce on the application of the death
penalty in Jamaica as part of the procedure for
consideration of reports. Jamaica was to have submitted
its second periodic report on 1 August 1986 and
3 August 1991.
The Committee is not competent to decide what
would be preferable in cases like that of the
communication under consideration. Neither should it
transform this communication into a mere hypothetical
case in order to induce unspecified State officials to
behave in a particular manner. Any opinion should be
based on the concrete circumstances of Mr. Johnson's
imprisonment.
This means that, for 15 years, the Human Rights
Committee has been prevented from considering whether
the death penalty is imposed in Jamaica in accordance
with the strict limits imposed by the Covenant.
Furthermore, any decision regarding this
communication should be taken on a strictly legal basis.
There is no doubt that the certainty of death constitutes
torture for the majority of people; the majority of those
sentenced to death are in a similar position.
Independently of the fact that it is my philosophical
conviction that the death penalty, and therefore its
corollaries (being sentenced to death and awaiting
execution) constitute inhuman, cruel and degrading
punishment, I must ask myself whether those facts - and,
in a case such as this one, the phenomenon of death row
- are in violation of the International Covenant on Civil
and Political Rights.
I do not, however, agree with the conclusion, at
which the majority have arrived, that it is, therefore,
preferable for a condemned person to endure being on
death row, regardless in any case of the length of time
spent there. The arguments of the majority are, in any
case, subjective and do not represent an objective analysis
of treaty norms.
In the first place, it is stated as a basic assumption
that awaiting execution is preferable to execution itself.
This argument cannot be valid since, as I have said,
communications such as the one under consideration can
be viewed only in the light of the attendant circumstances;
in other words, they can be decided only on a case-by-case
basis.
Any opinion comes up against the fact that the
Covenant does not prohibit the death penalty. It cannot,
therefore, be maintained that the death row phenomenon,
per se, constitutes cruel, inhuman or degrading treatment.
Nor can implementation of the death penalty be
prohibited.
Furthermore, a claim such as that of the majority is
completely subjective. It represents an analysis of human
behaviour which expresses the feelings of the members of
the Committee, but which cannot be applied across the
board. For example, it would not be surprising if a person
condemned to death who was suffering from a terminal or
degenerative illness preferred to be executed rather than
remain on death row. It is not surprising that some people
commit murder for the purpose of having the death
penalty imposed on them; for them, every day spent on
death row constitutes real torture.
However, all States parties must minimize the
psychological torture involved in awaiting execution. This
means that the State must guarantee that the suffering to
be endured by those awaiting execution will be reduced to
the necessary minimum.
In that regard, the following guarantees are
required:
1. The legal proceedings establishing the guilt of
the person condemned to death must meet all the
requirements laid down by article 14 of the Covenant;
5. I also disagree with the position that, in this
case, to rule that the excessive length of time which Errol
Johnson spent on death row constitutes a violation of the
Covenant would be to convey a "message" to States
parties that they should execute those condemned to death
expeditiously. This, again, is a subjective opinion of the
majority and represents the feelings of the Committee
members rather than a legal analysis. Moreover, it
presents the additional problem of defining a priori how
States parties will behave.
2. The accused must have effective access to all
necessary remedies until his guilt has been demonstrated
beyond a doubt;
3. Reasonable time-limits must be set for the
exercise of these remedies and for their review by
independent courts;
4. Execution cannot take place until the
condemned person's last remedy has been exhausted and
until the death sentence has acquired final binding effect;
In that regard, I also regret that the State party has
not allowed the Committee to weigh its position on the
imposition of the death penalty. Indeed, this is one of the
facts which leads me to dissent from the majority opinion:
5. While awaiting execution, the condemned
person must at all times be duly accorded humane
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