IV.
7.
The fact that the drafters of the International
Covenant on Civil and Political Rights did not include
extradition in article 13 is quite logical, but on that
account it cannot be affirmed that their intention was to
leave extradition proceedings outside the protection
afforded by the Covenant. The fact is, rather, that
extradition does not fit in with the legal situation defined
in article 13. The essential difference lies, in my opinion,
in the fact that this rule refers exclusively to the expulsion
of "an alien lawfully in the territory of a State party".g
Extradition is a kind of "expulsion" that goes beyond what
is contemplated in the rule. Firstly, extradition is a specific
procedure, whereas the rule laid down in article 13 is of a
general nature; however article 13 merely stipulates that
expulsion must give rise to a decision in accordance with
law, and even – in cases where there are compelling
reasons of national security – it is permissible for the alien
not to be heard by the competent authority or to have his
case reviewed. Secondly, whereas expulsion constitutes a
unilateral decision by a State, grounded on reasons that lie
exclusively within the competence of that State -provided
that they do not violate the State's international
obligations, such as those under the Covenant –
extradition constitutes an act based upon a request by
another State. Thirdly, the rule in article 13 relates to
aliens who are in the territory of a State party to the
Covenant, whereas extradition may relate both to aliens
and to nationals; indeed, on the basis of its discussions the
Committee has considered the practice of expelling
nationals (for example exile) in general (other than under
extradition proceedings) to be contrary to article 12.h
Fourthly, the rule in article 13 relates to persons who are
lawfully in the territory of a country; in the case of
extradition, the individuals against whom the proceedings
are initiated are not necessarily lawfully within the
jurisdiction of a country; on the contrary – and especially
if it is borne in mind that article 13 leaves the question of
the lawfulness of the alien's presence to national law – in a
great many instances persons who are subject to
extradition proceedings have entered the territory of the
requested State illegally, as in the case of the author of the
communication.
9.
In this particular case, Canada extradited the
author of the communication to the United States of
America, where he had been found guilty of first degree
murder. It will have to be seen – as the Committee stated
in its decision on the admissibility of the communication –
whether Canada, in granting Mr. Kindler's extradition,
exposed him, necessarily or foreseeably, to a violation of
article 6 of the Covenant.
10.
The same State party argued that "the author
cannot be considered a victim within the meaning of the
Optional Protocol, since his allegations are derived from
assumptions about possible future events, which may not
materialize and which are dependent on the law and
actions of the authorities of the United States".i Although
it is impossible to foresee a future event, it must be
understood that whether or not a person is a victim
depends on whether that event is foreseeable or, in other
words, on whether, according to common sense, it may
happen, in the absence of exceptional events that prevent
it from occurring – or necessary – in other words, it will
inevitably occur, unless exceptional events prevent it from
happening. An initial aspect that has to be elucidated is,
then, the nature of the jury's decision under the Code of
Criminal Procedure of the State of Pennsylvania. The fact
that Mr. Kindler may (foreseeably) or must (necessarily) be
sentenced to death depends on the judge's power to change
the jury's "recommendation". Although the Secretariat
merely indicated that the author of the communication
had stated that the recommendation of the jury had to be
complied with by the judge, documents in the possession
of the Secretariat showed that it was more than a simple
statement by Mr. Kindler.j Before the Supreme Court of
Canada the author stated, without being refuted by the
Canadian Executive or the contrary being established in
any other way that "the recommendation is binding and
the judge must impose the death sentence".k In view of
this affirmation, we must then take it for granted that the
author, necessarily and foreseeably, will be sentenced to
death and that, consequently, he may be executed at any
moment. In this connection, it is the law of Pennsylvania
that obliges the judge to comply with the jury's order.
Canada's contention that what is involved is an event that
may not materialize because it depends on the law and
actions of the authorities is groundless. In the case of the
Code of Criminal Procedure under which the court that
sentenced Mr. Kindler operates, the imposition of the
death penalty is definite, since the judge cannot change the
jury's decision.
8.
Although extradition cannot be considered to be a
kind of expulsion within the meaning of article 13 of the
Covenant, this does not imply that it is excluded from
the scope of the Covenant. Extradition must be strictly
adapted in all cases to the rules laid down in the
agreement. Thus the extradition proceedings must follow
the rules of due process as required by article 14 and,
furthermore, their consequences must not entail a
violation of any other provision. Therefore, a State
cannot allege that extradition is not covered by the
Covenant in order to evade the responsibility that would
devolve upon it for the possible absence of protection in
a foreign jurisdiction.
g
The extradition of Mr. Joseph Kindler to the
United States of America
11.
It is possible, in this connection, that the author
may appeal against the jury's decision, in which case the
foreseeability and necessity of the execution could be
affected in such a way that the death sentence might not
hang over Mr. Kindler. However, four questions must be
borne in mind in order to be able to decide that the death
sentence would not necessarily or foreseeably be imposed:
International Covenant on Civil and Political Rights.
h
In this connection, see the summary records of the
Committee's recent discussions regarding Zaire and
Burundi, in relation to the expulsion of nationals, and
Venezuela in relation to the continuing existence, in
criminal law, of the penalty of exile.
i
Views, para. 4.2 (emphasis added).
j
See above, para. 8.
k
Appeal of Joseph John Kindler to the Supreme Court
of Canada, para. 1, p. 1.
130
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