amounts to a violation of article 7", has thus "failed to
comply with its obligations under the Covenant by
extraditing Mr. Ng without having sought and received
guarantees that he would not be executed".
2.
7.
The case of Mr. Ng apparently meets none of these
tests; neither can it be argued that torture or cruel,
inhuman or degrading treatment or punishment (in the
sense of article 7 of the Covenant) in the receiving State is
the necessary and foreseeable consequence of Mr. Ng's
extradition, nor can it be maintained that there would be a
real risk of such treatment.
The following are the reasons for my dissent.
Mr. Ng cannot be regarded as victim in the sense of
article 1 of the Optional Protocol
8.
Mr. Ng is charged in California with 19 criminal
counts, including kidnapping and 12 murders, committed
in 1984 and 1985. However, he has so far not been tried,
convicted or sentenced. If he were convicted, he would
still have various opportunities to appeal his conviction
and sentence through state and federal appeals instances,
up to the Supreme Court of the United States.
Furthermore, given the nature of the crimes allegedly
committed by Mr. Ng it is completely open at this stage
whether or not the death penalty will be imposed, as a plea
of insanity could be entered and might be successful.
3.
The issue of whether Mr. Ng can or cannot be
regarded as a victim was left open in the decision on
admissibility (decision of 28 October 1992). There the
Committee observed that pursuant to article 1 of the
Optional Protocol, it may only receive and consider
communications from individuals subject to the
jurisdiction of a State party to the Covenant and to the
Optional Protocol "who claim to be victims of a violation
by that State party of any of their rights set forth in the
Covenant". In the present case, the Committee concluded
that only the consideration on the merits of the
circumstances under which the extradition procedure and
all its effects occurred, would enable it to determine
whether the author was a victim within the meaning of
article 1 of the Optional Protocol. Accordingly the
Committee decided to join the question of whether the
author is a victim to the consideration of the merits. So far
so good.
9.
In their joint individual opinion on the
admissibility of a similar case (not yet made public)
several members of the Committee, including myself,
have again emphasized that the violation that would affect
the author personally in another jurisdiction must be a
necessary and foreseeable consequence of the action of the
defendant State. As the author in that case had not been
tried and, a fortiori, had not been found guilty or
recommended to the death penalty, the dissenting
members of the Committee were of the view that the test
had not been met.
4.
In its Views, however, the Committee does no
longer address the issue of whether Mr. Ng is a victim. In
this connection, the following reasoning has to be made.
10.
In view of what is explained in the preceding
paragraphs, the same consideration would hold true for the
case of Mr. Ng, who thus cannot be regarded as victim in
the sense of article 1 of the Optional Protocol.
5.
As to the concept of victim, the Committee has in
recent decisions recalled its established jurisprudence,
based on the admissibility decision in the case of E. W. et
al. v. the Netherlands (case No. 429/1990), where the
Committee declared the relevant communication
inadmissible under the Optional Protocol. In the case
mentioned, the Committee held that "for a person to claim
to be a victim of a violation of a right protected by the
Covenant, he or she must show either that an act or an
omission of a State party has already adversely affected
his or her enjoyment of such right, or that such an effect is
imminent".
There are no secured elements to determine that execution
by gas asphyxiation would in itself constitute a violation
of article 7 of the Covenant
11.
The Committee's majority is of the view that
judicial execution by gas asphyxiation, should the death
penalty be imposed on Mr. Ng, would not meet the test of
the "least possible physical and mental suffering", and
thus would constitute cruel and inhuman treatment in
violation of article 7 of the Covenant (paragraph 16.4).
The Committee's majority thus attempts to make a
distinction between various methods of execution.
6.
In the case of John Kindler v. Canada
(communication No. 470/1991) the Committee has, in its
admissibility decision (decision of 31 July 1992), somewhat
expanded on the notion of victim by stating that while a
State party clearly is not required to guarantee the rights of
persons within another jurisdiction, if such a State party
takes a decision relating to a person within its jurisdiction,
and the necessary and foreseeable consequence is that this
person's rights under the Covenant will be violated in
another jurisdiction, the State party itself may be in
violation of the Covenant. To illustrate this, the Committee
referred to the "handing over of a person to another State ...
where treatment contrary to the Covenant is certain or is the
very purpose of the handing over" (paragraph 6.4). In the
subsequent decision on the merits of the Kindler case
(decision of 30 July 1993), the Committee introduced the
concept of "real risk". The Committee stated that "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 may be in violation of
the Covenant" (paragraph 13.2).
12.
The reasons for the assumption that the specific
method of execution currently applied in California would
not meet the above-mentioned test of the "least possible
physical and mental suffering" – this being the only reason
given to substantiate the finding of a violation of article 7
– is that "execution by gas asphyxiation may cause
prolonged suffering and agony and does not result in death
as swiftly as possible, as asphyxiation by cyanide gas may
take over 10 minutes" (paragraph 16.3).
13.
No scientific or other evidence is quoted in support
of this dictum. Rather, the onus of proof is placed on the
defendant State, which, in the majority's view, had the
opportunity to refute the allegations of the author on the
facts, but failed to do so. This view is simply incorrect.
14.
As the fact sheets of the case show, the remarks by
the Government of Canada on the sub-issue "death penalty
as a violation of article 7" total two and a half pages. In
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