irrespective of the fact that Mr. Kindler is not a citizen of
Canada. The obligations towards him are those that must
avail to him in his quality as a human being on Canadian
soil. Secondly, the very notion of "protection" requires
prior preventive measures, particularly in the case of a
deprivation of life. Once an individual is deprived of his
life, it cannot be restored to him. These preventive
measures necessarily include the prevention of any real
risk of the deprivation of life. By extraditing Mr. Kindler
without seeking assurances, as Canada was entitled to do
under the Extradition Treaty, that the death sentence
would not be applied to him, Canada put his life at real
risk. Thirdly, it cannot be said that unequal standards are
being expected of Canada as opposed to other States. In its
very terms, some provisions of article 6 apply to States
which do not have the death penalty and other provisions
apply to those States which have not yet abolished that
penalty. Besides, unequal standards may, unfortunately, be
the result of reservations which States may make to
particular articles of the Covenant though, I hasten to add,
it is questionable whether all reservations may be held to
be valid.
the State through which it acts, that is to say, through its
judicial arm or through its executive arm. Article 26
regulates a State party's legislative, executive as well as
judicial behaviour. That, in my view, is the prime
principle, in questions of equality and non-discrimination
under the Covenant, guaranteeing the application of the
rule of law in a State party.
6.
I have grave doubts as to whether, in deciding to
extradite Mr. Kindler, Canada would have reached the
same decision if it had properly directed itself on its
obligations deriving from article 5 (2), in conjunction
with articles 2, 6 and 26, of the Covenant. It would
appear that Canada rather considered, in effect, the
question whether there were, or there were not, special
circumstances justifying the application of the death
sentence to Mr. Kindler, well realizing that, by virtue of
Canadian law, the death sentence could not have been
imposed in Canada itself on Mr. Kindler on conviction
there for the kind of offence he had committed. Canada
had exercised its sovereign decision to abolish the death
penalty for civil, as distinct from military, offences,
thereby ensuring greater respect for, and protection of
the individual's inherent right to life. Article 5 (2) would,
even if article 6 of the Covenant were given a minimal
interpretation, have prevented Canada from invoking that
minimal interpretation to restrict or give lesser
protection to that right by an executive act of
extradition though, in principle, permissible under
Canadian extradition law.
3.4
A further question arises under article 6 (1),
which requires that no one shall be arbitrarily deprived
of his life. The question is whether the granting of the
same and equal level of respect and protection is
consistent with the attitude that, so long as the individual
is within Canada's territory, that right will be fully
respected and protected to that level, under Canadian law
viewed in its total effect even though expressed in
different enactments (penal law and extradition law),
whereas Canada might be free to abrogate that level of
respect and protection by the deliberate and coercive act
of sending that individual away from its territory to
another State where the fatal act runs the real risk of
being perpetrated. Could this inconsistency be held to
amount to a real risk of an "arbitrary" deprivation of life
within the terms of article 6 (1) in that unequal treatment
is in effect meted out to different individuals within the
same jurisdiction? A positive answer would seem to
suggest itself as Canada, through its judicial arm, could
not sentence an individual to death under Canadian law
whereas Canada, through its executive arm, found it
possible under its extradition law to extradite him to face
the real risk of such a sentence.
R. Lallah
D. INDIVIDUAL OPINION SUBMITTED
BY MR. FAUSTO POCAR (DISSENTING)
While I agree with the decision of the Committee in
so far as it refers to the consideration of the claim under
article 7 of the Covenant, I am not able to agree with the
findings of the Committee that in the present case there has
been no violation of article 6 of the Covenant. The question
whether the fact that Canada had abolished capital
punishment except for certain military offences required its
authorities to refuse extradition or request assurances from
the United States that the death penalty would not be
imposed against Mr. Kindler, must in my view receive an
affirmative answer.
3.5
For the above reasons, there was, in my view, a
case before the Committee to find a violation by Canada
of article 6 of the Covenant.
Regarding the death penalty, it has to be recalled
that, although article 6 of the Covenant does not prescribe
categorically the abolition of capital punishment, it
imposes a set of obligations on States parties that have not
yet abolished it. As the Committee has pointed out in its
General Comment 6 (16), "the article also refers generally
to abolition in terms which strongly suggest that abolition
is desirable." Furthermore, the wording of paragraphs 2
and 6 clearly indicates that article 6 tolerates – within
certain limits and in view of a future abolition – the
existence of capital punishment in States parties that have
not yet abolished it, but may by no means be interpreted as
implying for any State party an authorization to delay its
abolition or, a fortiori, to enlarge its scope or to introduce
or reintroduce it. Consequently, a State party that has
abolished the death penalty is in my view under the legal
obligation, according to article 6 of the Covenant, not to
reintroduce it. This obligation must refer both to a direct
4.
Consideration of the possible application of
articles 26 and 5 of the Covenant would, in my view, lend
further support to the case for a violation of article 6.
5.
In the light of the considerations discussed in
paragraph 3.4 above, it would seem that article 26 of the
Covenant which guarantees equality before the law has
been breached. Equality under this article, in my view,
includes substantive equality under a State party's law
viewed in its totality and its effect on the individual.
Effectively, different and unequal treatment may be said
to have been meted out to Mr. Kindler when compared
with the treatment which an individual having committed
the same offence would have received in Canada. It does
not matter, for this purpose, whether Canada metes out
this unequal treatment by reason of the particular arm of
126
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents