reintroduction within the State's jurisdiction, and to an
indirect one, as it is the case when the State's jurisdiction,
and to an indirect one, as it is the case when the State acts
– through extradition, expulsion or compulsory return – in
such a way that an individual within its territory and
subject to its jurisdiction may be exposed to capital
punishment in another State. I therefore conclude that in
the present case there has been a violation of article 6 of
the Covenant.
reserved by the Covenant – and that in an express and
unambiguous way – for non-abolitionist States.
The second error consists in regarding as an
authorization to re-establish the death penalty in a country
which has abolished it what is merely an implicit
recognition of its existence. This is an extensive
interpretation which runs counter to the proviso in
paragraph 6 of article 6 that "nothing in this article shall
be invoked ... to prevent the abolition of capital
punishment". This extensive interpretation, which is
restrictive of rights, also runs counter to the provision in
article 5, paragraph 2, of the Covenant that "there shall be
no restriction upon or derogation from any of the
fundamental human rights recognized or existing in any
State party to the present Covenant pursuant to law,
conventions, regulations or custom on the pretext that the
present Covenant does not recognize such rights or that it
recognizes them to a lesser extent". Taken together, these
texts prohibit a State from engaging in distributive
application of the death penalty. There is nothing in the
Covenant to force a State to abolish the death penalty but,
if it has chosen to do so, the Covenant forbids it to reestablish it in an arbitrary way, even indirectly.
F. Pocar
E. INDIVIDUAL OPINION SUBMITTED
BY MRS. CHRISTINE CHANET (DISSENTING)
The questions posed to the Human Rights
Committee by Mr. Kindler's communication are clearly set
forth in paragraph 14.1 of the Committee's decision.
Paragraph 14.2 does not require any particular
comment on my part.
On the other hand, when replying to the questions
thus identified in paragraph 14.1, the Committee, in order
to conclude in favour of a non-violation by Canada of its
obligations under article 6 of the Covenant, was forced to
undertake a joint analysis of paragraphs 1 and 2 of
article 6 of the Covenant.
The third error of the Committee in the Kindler
decision results from the first two. Assuming that Canada
is implicitly authorized by article 6, paragraph 2, of the
Covenant, to re-establish the death penalty, on the one
hand, and to apply it in certain cases on the other, the
Committee subjects Canada in paragraphs 14.3, 14.4
and 14.5, as if it were a non-abolitionist country, to a
scrutiny of the obligations imposed on non-abolitionist
States: penalty imposed only for the most serious crimes,
judgement rendered by a competent court, etc.
There is nothing to show that this is a correct
interpretation of article 6. It must be possible to interpret
every paragraph of an article of the Covenant separately,
unless expressly stated otherwise in the text itself or
deducible from its wording.
That is not so in the present case.
This analysis shows that, according to the
Committee, Canada, which had abolished the death
penalty on its territory, has by extraditing Mr. Kindler to
the United States re-established it by proxy in respect of a
certain category of persons under its jurisdiction.
The fact that the Committee found it necessary to
use both paragraphs in support of its argument clearly
shows that each paragraph, taken separately, led to the
opposite conclusion, namely, that a violation had
occurred.
I agree with this analysis but, unlike the
Committee, I do not think that this behaviour is authorized
by the Covenant.
According to article 6, paragraph 1, no one shall be
arbitrarily deprived of his life; this principle is absolute
and admits of no exception.
Moreover, having thus re-established the death
penalty by proxy, Canada is limiting its application to a
certain category of persons: those that are extraditable to
the United States.
Article 6, paragraph 2, begins with the words: "In
countries which have not abolished the death penalty ...".
This form of words requires a number of comments:
It is negative and refers not to countries in which
the death penalty exists but to those in which it has not
been abolished. Abolition is the rule, retention of the death
penalty the exception.
Canada acknowledges its intention of so practising
in order that it may not become a haven for criminals from
the United States. Its intention is apparent from its
decision not to seek assurances that the death penalty
would not be applied in the event of extradition to the
United States, as it is empowered to do by its bilateral
extradition treaty with that country.
Article 6, paragraph 2, refers only to countries in
which the death penalty has not been abolished and thus
rules out the application of the text to countries which
have abolished the death penalty.
Consequently, when extraditing persons in the
position of Mr. Kindler, Canada is deliberately exposing
them to the application of the death penalty in the
requesting State.
Lastly, the text imposes a series of obligations on
the States in question. Consequently, by making a "joint"
interpretation of the first two paragraphs of article 6 of the
Covenant, the Committee has, in my view, committed
three errors of law:
In so doing, Canada's decision with regard to a
person under its jurisdiction according to whether he is
extraditable to the United States or not, constitutes a
discrimination in violation of article 2, paragraph 1, and
article 26 of the Covenant.
One error, in that it is applying to a country which
has abolished the death penalty, Canada, a text exclusively
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