14.2 As to (a), the Committee recalls its General
Comment on article 6,11 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.
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.
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
hearing under article 14 of the Covenant.
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:
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.
(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?
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
(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?
11
121
General Comment No. 6 [16] of 27 July 1982, para. 6.
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