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.
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:
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,13 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.
(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.
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 startingpoint 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.
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
13
See communication No. 470/1991, Views adopted on
30 July 1993, para. 12.3.
104
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