long stay on death row could entail a violation of that
provision. In arriving at that conclusion, the majority
made a number of assumptions:
APPENDIX II
Individual opinion submitted by Mr.Prafullachandra
N. Bhagwati, Mr. Marco T. Bruni Celli, Mr. Fausto Pocar
and Mr.Julio Prado Vallejo pursuant to rule 94,
paragraph 3, of the Committee’s rules of procedure,
concerning the Views of the Committee on communication
No. 588/1994,
Errol Johnson v. Jamaica
1. That the International Covenant on Civil and
Political Rights does not prohibit the death penalty,
though it subjects its use to severe restrictions;
2. That detention on "death row" is a necessary
consequence of imposing the death penalty and that, no
matter how cruel, degrading and inhuman it may appear to
be, it cannot, of itself, be regarded as a violation of articles
7 and 10 of the Covenant;
The development in the jurisprudence of the
Committee with regard to the present communication
obliges us to express views dissenting from those of the
Committee majority. In several cases, the Committee
decided that prolonged detention on death row does not
per se constitute a violation of article 7 of the Covenant,
and we could accept these decisions in the light of the
specific circumstances of each communication under
consideration.
3. That, while the Covenant does not prohibit the
death penalty, it refers to its abolition in terms which
strongly suggest that abolition is desirable;
4. That the provisions of the Covenant must be interpreted
in the light of the objects and purposes of that instrument
and that, as one of these objects and purposes is to
promote reduction in the use of the death penalty, an
interpretation that may encourage a State to make use of
that penalty should be avoided.
The Views adopted by the Committee in the
present case reveal, however, a lack of flexibility that
would not allow to examine any more the circumstances
of each case, so as to determine whether, in a given case,
prolonged detention on death row constitutes cruel,
inhuman or degrading treatment within the meaning of
article 7 of the Covenant. The need of a case by case
appreciation leads us to dissociate ourselves from the
position of the majority, and to associate ourselves to the
opinion of other members of the Committee who were not
able to accept the majority views, in particular to the
individual opinion formulated by Ms. Chanet.
On the basis of these assumptions, a majority of
the members of the Human Rights Committee have
arrived at certain conclusions which entail, in their
opinion, a finding that there has been no violation of
articles 7 and 10 of the Covenant on the part of the State
that is the subject of the communication:
1. That a State party which executes a condemned
person after he has spent a certain period of time awaiting
execution would not be in violation of the provisions of
the Covenant, whereas one which does not execute the
prisoner would violate those provisions. This implies that
the problem of length of detention on death row can be
dealt with only by setting a cut-off date after which the
Covenant would have been violated;
APPENDIX III
Individual opinion submitted by Mr. Francisco José
Aguilar Urbina pursuant to rule 94, paragraph 3, of the
Committee’s rules of procedure, concerning the Views of
the Committee on communication No. 588/1994,
Errol Johnson v. Jamaica
2. That making the time factor the one that
determines a violation of the Covenant conveys a message
to States parties that they should carry out a death
sentence as expeditiously as possible after it is imposed;
3. That to hold that prolonged detention on death
row does not, per se, constitute a violation of articles 7
and 10 of the Covenant does not imply that other
circumstances connected with such detention may not turn
it into cruel, inhuman or degrading punishment.
The Human Rights Committee has established in
its jurisprudence that the death row phenomenon does not,
per se, constitute a violation of article 7 of the
International Covenant on Civil and Political Rights. The
Committee has repeatedly maintained that the mere fact of
being sentenced to death does not constitute cruel,
inhuman or degrading treatment or punishment. On some
occasions, I have agreed with this position, subject to the
proviso that, as I also wish to make clear in this individual
opinion, I believe that capital punishment in itself
constitutes inhuman, cruel and degrading punishment.
While subscribing to several of the arguments put
forward by the majority, I agree with only the last of their
conclusions. I consider the majority opinion debatable:
1. I agree that, while the International Covenant
on Civil and Political Rights does not prohibit the death
penalty, it does subject its use to severe restrictions;
In my opinion, the Committee is wrong to seek
inflexibly to maintain its jurisprudence without clarifying,
analysing and appraising the facts before it on a case-bycase basis. In the communication concerned (Johnson v.
Jamaica), the Human Rights Committee's wish to be
consistent with its previous jurisprudence has led it to rule
that the length of detention on death row is not in any case
contrary to article 7 of the Covenant.
2. I also agree that, since capital punishment is
not prohibited, States parties which still include it among
their penalties are not prevented from applying it - within
the strict limits set by the Covenant - and that the
existence of "death row" (in other words, a certain period
of time between the handing down of a death sentence and
the execution of the condemned person) is, therefore,
inevitable
The majority opinion seems to be based on the
supposition that only a total reversal of the Committee's
jurisprudence would allow it to decide that an excessively
3. I also consider that there is no doubt that the
Covenant suggests that abolition of the death penalty is
desirable;
133
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