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 108