Review of admissibility and consideration of merits
foreclosed "progress toward preparation of a
reasonably adequate defence".
13.1 In his initial submission, author's counsel
alleged that Mr. Ng was a victim of violations of
articles 6, 7, 9, 10, 14 and 26 of the Covenant.
Further submission from the author and the State
party's reaction thereto
13.2 When the Committee considered the
admissibility of the communication during its fortysixth session and adopted a decision relating thereto
(decision of 28 October 1992), it noted that the
communication raised complex issues with regard
to the compatibility with the Covenant, ratione
materiae, of extradition to face capital punishment,
in particular with regard to the scope of articles 6
and 7 of the Covenant to such situations and their
application in the author's case. It noted, however,
that questions about the issue of whether the author
could be deemed a "victim" within the meaning of
article 1 of the Optional Protocol remained, but
held that only consideration of the merits of all the
circumstances under which the extradition
procedure and all its effects occurred, would enable
the Committee to determine whether Mr. Ng was
indeed a victim within the meaning of article 1. The
State party has made extensive new submissions on
both admissibility and merits and reaffirmed that
the communication is inadmissible because "the
evidence shows that Ng is not the victim of any
violation in Canada of rights set out in the
Covenant". Counsel, in turn, has filed detailed
objections to the State party's affirmations.
12.1 In an affidavit dated 5 June 1993, signed by
Mr. Ng and submitted by his counsel, the author
provides detailed information about the conditions of
his confinement in Canada between 1985 and his
extradition in September 1991. He notes that
following his arrest on 6 July 1985, he was kept at
the Calgary Remand Center in solitary confinement
under a so-called "suicide watch", which meant
24 hour camera supervision and the placement of a
guard outside the bars of the cell. He was only
allowed one hour of exercise each day in the Center's
"mini-yard",
on
"walk-alone
status"
and
accompanied by two guards. As the extradition
process unfolded in Canada, the author was
transferred to a prison in Edmonton; he complains
about "drastically more severe custodial restrictions"
from February 1987 to September 1991, which he
links to the constant and escalating media coverage
of the case. Prison guards allegedly began to tout
him, he was kept in total isolation, and contact with
visitors was restricted.
12.2 Throughout the period from 1987 to 1991, the
author was kept informed about progress in the
extradition process; his lawyers informed him about
the "formidable problems" he would face if returned
to California for prosecution, as well as about the
"increasingly hostile political and judicial climate in
California towards capital defendants generally". As
a result, he experienced extreme stress, sleeplessness
and anxiety, all of which were heightened as the
dates of judicial decisions in the extradition process
approached.
13.3 In reviewing the question of admissibility, the
Committee takes note of the contentions of the State
party and of counsel's arguments. It notes that
counsel, in submissions made after the decision of
28 October 1992, has introduced entirely new issues
which were not raised in the original
communication, and which relate to Mr. Ng's
conditions of detention in Canadian penitentiaries,
the stress to which he was exposed as the extradition
process proceeded, and alleged deceptive
manoeuvres by Canadian prison authorities.
12.3 Finally, the author complains about the
deceptions committed by Canadian prison authorities
following the release of the decision of the Canadian
Supreme Court on 26 September 1991. Thus, instead
of being allowed to contact counsel after the release
of the decision and to obtain advice about the
availability of any remedies, as agreed between
counsel and a prison warden, he claims that he was
lured from his cell, in the belief that he would be
allowed to contact counsel, and thereafter told that
he was being transferred to the custody of United
States marshals.
13.4 These fresh allegations, if corroborated,
would raise issues under articles 7 and 10 of the
Covenant, and would bring the author within the
ambit of article 1 of the Optional Protocol. While the
wording of the decision of 28 October 1992 would
not have precluded counsel from introducing them at
this stage of the procedure, the Committee, in the
circumstances of the case, finds that it need not
address the new claims, as domestic remedies before
the Canadian courts were not exhausted in respect of
them. It transpires from the material before the
Committee that complaints about the conditions of
the author's detention in Canada or about alleged
irregularities committed by Canadian prison
authorities were not raised either during the
committal or the surrender phase of the extradition
proceedings. Had it been argued that an effective
12.4 The State party objects to these new
allegations as they "are separate from the
complainant's original submission and can only
serve to delay consideration of the original
communication by the Human Rights Committee". It
accordingly requests the Committee not to take these
claims into consideration.
103
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