Inadmissibility decision; Subjects: CIVIL AND POLITICAL RIGHTS, OFFENDERS, PRISONER TREATMENT, CANADA, UNITED STATES, PRISONERS, CAPITAL PUNISHMENT, DEPORTATION; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
UNITED
NATIONS
CCPR
International covenant
on civil and
political rights
Distr.
RESTRICTED*
CCPR/C/75/D/829/1998/Rev.1
29 November 2002
Original: ENGLISH
HUMAN RIGHTS COMMITTEE
Seventy-fifth session
8-26 July 2002
DECISION
Communication No. 829/1998
Submitted by:
Mr. Roger Judge (represented by counsel Mr. Eric Sutton)
Alleged victim:
The author
State party:
Canada
Date of communication:
7 August 1998 (initial submission)
Document references:
Special Rapporteur’s rule 91 decision, transmitted to the
State party on 20 August 1998 (not issued in document form)
Date of adoption of Views:
17 July 2002
[ANNEX]
* Made public by decision of the Human Rights Committee.
GE.02-46098 (E) 061202
CCPR/C/75/D/829/1998/Rev.1
page 2
Annex
DECISION OF THE HUMAN RIGHTS COMMITTEE UNDER THE
OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT
ON CIVIL AND POLITICAL RIGHTS
Seventy-fifth session
concerning
Communication No. 829/1998*
Submitted by:
Mr. Roger Judge (represented by counsel Mr. Eric Sutton)
Alleged victim:
The author
State party:
Canada
Date of communication:
7 August 1998 (initial submission)
The Human Rights Committee, established under article 28 of the International Covenant
on Civil and Political Rights,
Meeting on 17 July 2002,
Adopts the following:
Decision on admissibility
1.
The author of the communication, dated 7 August 1998, is Roger Judge, a citizen of the
United States of America, at the time of the submission detained at Ste-Anne-des-Plaines,
Quebec, Canada, and deported to the United States on the same day of submission,
7 August 1998. He claims to be a victim of violations by Canada of articles 6, 7, 10 and 14
of the International Covenant on Civil and Political Rights. He is represented by counsel.
* The following members of the Committee participated in the examination of the present
communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal
Bhagwati, Ms. Christine Chanet, Mr. Maurice Glèlè Ahanhanzo, Mr. Louis Henkin,
Mr. Ahmed Tawfik Khalil, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah,
Mr. Rafael Rivas Posada, Mr. Martin Scheinin, Mr. Ivan Shearer, Mr. Hipólito Solari Yrigoyen,
Mr. Patrick Vella and Mr. Maxwell Yalden.
CCPR/C/75/D/829/1998/Rev.1
page 3
Facts as submitted by the author
2.1
On 15 April 1987, the author of the communication was convicted on two counts of
first-degree murder and possession of an instrument of crime, before the Court of Common Pleas
of Philadelphia, Pennsylvania. On 12 June 1987, he was sentenced to death, by electric chair but
he escaped from prison on 14 June 1987 and fled to Canada.1
2.2
On 13 July 1988, the author was convicted of two robberies in Vancouver, Canada, and
on 8 August 1988, was sentenced to 10 years’ imprisonment. The author unsuccessfully
appealed his convictions on 1 March 1991.
2.3
On 15 June 1993, the author was ordered deported from Canada. The order was
conditional as he had announced his intention to claim refugee status. On 8 June 1994, he
withdrew his claim for Convention Refugee status, at which point the deportation order became
effective.
2.4
On 26 January 1995, on recommendation of Correctional Services of Canada, his case
was reviewed by the National Parole Board which ordered him detained until expiry of his
sentence, i.e. 8 August 1998.2
2.5
On 10 November 1997, the author wrote to the Minister of Citizenship and Immigration
requesting ministerial intervention with a view to staying the deportation order against him, until
such time as a request for extradition from the United States authorities might be sought and
received in his case. If removed under the Extradition Treaty, Canada could have asked for
assurances from the United States that he not be executed. In a letter, dated 18 February 1998,
the Minister refused this request.3
2.6
The author applied to the Federal Court of Canada for leave to commence an application
for judicial review of the Minister’s refusal. In this application, the author requested a stay on
the implementation of the deportation order until such time as he would be surrendered for
extradition, and a declaration that his detention in Canada and deportation to the United States
violated his rights under the Canadian Charter. The author’s application for leave was denied
on 23 June 1998. No reasons were provided and no appeal is possible from the refusal to grant
leave.
2.7
The author then petitioned the Superior Court of Quebec, whose jurisdiction is concurrent
with that of the Federal Court of Canada, for the same relief as that sought before the Federal
Court. On 6 August 1998, the Superior Court declined jurisdiction given that proceedings had
already been undertaken in Federal Court, albeit unsuccessfully.
2.8
Counsel contends that, although the ruling of the Superior Court of Quebec could be
appealed to the Court of Appeal, it cannot be seen as a useful remedy, as the issue would be
limited to the jurisdiction of the court rather than the merits of the case.
CCPR/C/75/D/829/1998/Rev.1
page 4
The complaint
3.1
Counsel claims that Canada imposed mental suffering upon the author that amounts to
cruel, inhuman and degrading treatment or punishment in having detained him for 10 years while
the certainty of capital punishment was hanging over his head at the conclusion of his sentence,
and this constitutes a breach of article 7 of the Covenant. Counsel argues that the author suffered
from the “death row phenomenon”, during his detention in Canada. This was explained as a
state of mental or psychological anguish, and, according to him, mattered little that the author
would not be executed on Canadian soil. Counsel claims that the State party had no valid
sentencing objective since the author was sentenced to death in any event, and therefore only
served to prolong the agony of his confinement while he awaited deportation and execution. It is
also submitted that in this respect, the author was not treated with humanity and respect for the
inherent dignity of the human person, thereby violating article 10 of the Covenant.
3.2
Counsel also contends that by detaining him for 10 years and deporting him to the
United States to face the death penalty, Canada has violated his right to life, contrary to article 6
of the Covenant.
3.3
Counsel also claims that, because of the author’s status as a fugitive he is denied a full
appeal in the United States, under Pennsylvanian law, and therefore by returning him to the
United States Canada has participated in a violation of article 14, paragraph 5, of the Covenant.
In this regard, Counsel states that there were errors by the trial judge in instructing the jury,
which would have laid the groundwork for appeals against both his conviction and sentence.
State party’s observations on admissibility
4.1
The State party contends that the author’s claims are inadmissible for failure to exhaust
domestic remedies, failure to raise issues under the Covenant, failure to substantiate claims and
incompatibility with the Covenant.
4.2
On the issue of non-exhaustion with respect to the author’s detention in Canada, the
State party makes several claims. Firstly, it claims that the author failed to raise his claims
before the competent courts in Canada at the material times. Both during his 1988 sentencing
hearing and on appeal of his convictions of robbery the author failed to complain, as he now
alleges, that a 10-year sentence, in light of his convictions and sentences in the United States,
constituted cruel treatment or punishment in violation of section 12 of the Canadian Charter of
Rights and Freedoms. These arguments were not made until 1998 when the author’s removal
from Canada was imminent.
4.3
Secondly, the State party submits that the author failed to appeal to the Appeal Division
of the National Parole Board of Canada or to challenge before the courts both the
National Parole Board’s decision not to release him before the expiration of his sentence and
the annual reviews of that decision. If he had been successful with these appeal avenues, he
might have been released prior to the expiration of his sentence. Failure to pursue such remedies
is clearly inconsistent with counsel’s position that Canada violated the author’s Covenant rights
in detaining him in Canada rather than removing him to the United States.
CCPR/C/75/D/829/1998/Rev.1
page 5
4.4
Thirdly, the State party states that if the author had wanted to be removed to the
United States rather than continue to be detained in Canada, he could also have asked that the
Department of Citizenship and Immigration intervene before the National Parole Board for the
purposes of arguing that he be released and removed to the United States. He could also have
applied to have been transferred to Pennsylvania pursuant to the Transfer of Offenders Treaty
between Canada and the United States of America on the Execution of Penal Sentences. In the
State party’s view, the author’s failure to diligently pursue such avenues casts doubt on the
genuineness of his assertion that he wanted to be removed to the United States where he had
been sentenced to death.
4.5
On the issue of non-exhaustion with respect to the author’s request for a stay on the
deportation order to the United States, the State party submits that the author failed to appeal the
ruling of the Superior Court of Quebec to the Court of Appeal. Contrary to counsel’s view, that
this remedy would not be useful as it would be limited to the jurisdiction of the court rather than
the merits of the case, the State party argues that the author’s petition was dismissed for both
procedural and substantive reasons, and, therefore, the Court of Appeal could have reviewed the
judgement on the merits.
4.6
The State party also contends that the author has failed to show that his detention and
subsequent removal to the United States raise any issues under articles 6, 7, 10 or 14,
paragraph 5, of the Covenant. If the Committee is of the opinion that these articles do apply to
the instant case, the State party contends that counsel has failed to substantiate any of these
claims for the purposes of admissibility.
4.7
With respect to the alleged violation of articles 7 and 10, the State party argues that
counsel has not cited any authority for his proposition that the “death row phenomenon” can
apply to a prisoner detained in an abolitionist State for crimes committed in that State, where that
person has been previously sentenced to capital punishment in another State. The author was
sentenced to imprisonment for robberies he committed in Canada and was not on death row in
Canada. It is submitted, therefore, that the “death row phenomenon” does not apply in the
circumstances and he has no claim under articles 7 and 10.
4.8
In relation to counsel’s argument that the sentencing had no valid objective as the author
had been sentenced to death in the United States, the State party submits that the sentencing
principle of retribution, denunciation and deterrence require the imposition of a sentence in
Canada for crimes committed in Canada.
4.9
According to the State party, if fugitives in Canada facing the death penalty were not
prosecuted and sentenced for crimes in Canada, this would lead to all sorts of potential abuses.
First, it would create a double standard of justice. Such fugitives would be immune from
prosecution while individuals not facing the death penalty would be prosecuted and sentenced,
even though the crime committed in Canada was the same in both cases. Similarly, it would
encourage lawlessness among such fugitives since in Canada they would be de facto immune
from prosecution and imprisonment. In essence, fugitives sentenced to death for murder in the
United States would be given a carte blanche to commit subsequent offences in Canada.
CCPR/C/75/D/829/1998/Rev.1
page 6
4.10
In the alternative, if the Committee is of the view that the facts of this case do raise issues
under articles 7 and 10, the State party submits that counsel has not substantiated a violation of
those articles for the purposes of admissibility. The State party argues that the Committee has on
many occasions reiterated that lengthy detention on death row does not constitute a violation of
articles 7 and 10 in the absence of some further compelling circumstances.4 It states that the
facts and circumstances of each case need to be examined, and that in the past the Committee has
had regard to the relevant personal factors of the author, the specific conditions of detention on
death row and whether the proposed method of execution is particularly abhorrent. No such
circumstances apply in this case. Moreover, it states that where the delay in awaiting execution
is the fault of the accused, such as where he escapes custody, the accused cannot be allowed to
take advantage of this delay. In this case, the delay arises from the author’s own criminal acts,
his escape and robberies.5
4.11
With respect to the alleged violation of article 6 the State party states that counsel has
provided no authority for his proposition that detaining an individual for crimes committed in
that State despite the fact that the same person has been sentenced to death in another State raises
an issue under article 6. The author was sentenced in Canada for robberies he committed there
and is not facing the death penalty in Canada.
4.12
With respect to the alleged violation of article 6 because of the author’s deportation from
Canada, the State party contends that counsel has not sufficiently substantiated this claim. The
State party recalls the Committee’s prior jurisprudence that “if a State party takes a decision
relating to a person within its jurisdiction and the necessary and foreseeable consequences is that
the person’s rights under the Covenant will be violated in another jurisdiction, the State party
itself may be in violation of the Covenant.”6 The State party also refers to the Committee’s
jurisprudence in Reid v. Jamaica, when it decided that the requirement of article 6 that a sentence
of death may be “imposed in accordance with the law” implied that the procedural guarantees
prescribed in the Covenant were observed.7 According to the State party, if the procedural
guarantees of the Covenant were observed, there is no violation of article 6. It claims that the
only due process issue raised by Counsel was the narrower appeal of conviction and sentence
allowed under Pennsylvanian law. In this respect, the State party contends that counsel has not
substantiated that the author was deprived of his right to review by a higher tribunal and it refers
mutatis mutandis on its submissions on article 14, paragraph 5, below.
4.13
With regard to the alleged violation of article 14, paragraph 5, of the Covenant, the
State party presents several arguments to demonstrate that an issue under this article does not
arise. Firstly, it contends that counsel’s complaint has its basis in the law of the state of
Pennsylvania in the United States and not in Canadian law. Therefore, counsel has no
prima facie claim against Canada.
4.14
Secondly, the State party contends that the author’s right to review by the higher tribunal
should be treated under article 6 and not separately under article 14. The State party contends
that, in light of the Committee’s interpretation of article 6, paragraph 2, as requiring the
maintenance of procedural guarantees in the Covenant, including the right to review by the
higher tribunal stipulated in article 14, paragraph 5, to the extent that this case raises issues under
article 6, this right to review should be treated under article 6 only.
CCPR/C/75/D/829/1998/Rev.1
page 7
4.15
Thirdly, the State party argues that the author’s detention in and removal from Canada
does not raise an issue under article 14, as the author’s incarceration for robberies committed in
Canada did not have any necessary and foreseeable consequence on his right to have his
convictions and sentences reviewed in Pennsylvania. It is also submitted that the author’s
removal did not have any necessary and foreseeable consequence on his appeal rights since the
author’s appeal had already taken place in 1991, while he was imprisoned in Canada.
4.16
The State party further argues that, although in the United States a prisoner’s rights may
be adversely affected in the event that he escapes from custody, the author has failed to
substantiate his claim that his right to review by a higher tribunal has been violated. It encloses
the 14-page judgement of the Supreme Court of Pennsylvania on the appeal of the author,
indicating that the Supreme Court of Pennsylvania is statutorily mandated to review all death
sentences, in particular the sufficiency of the evidence to sustain a conviction for murder of the
first degree. This statutory review was undertaken with respect to the author’s case, on
22 October 1991, at which he was represented by an attorney. The Supreme Court affirmed both
the convictions and sentences. On the allegation that the trial judge committed errors in
instructing the jury and that those errors had not be reviewed by the Supreme Court, the
State party submits that even if the judge did so err, upon a realistic view of the evidence, a
properly instructed jury could not have come to any other conclusion than that reached by the
jury in the author’s trial
4.17
The State party further submits that two additional review recourses may be available to
the author in the United States. The first is a petition filed in the Court of Common Pleas under
the Pennsylvania’s Post-Conviction Relief Act (PCRA) in which constitutional issues may be
raised. The State party claims that the author has already filed a petition under this act. The
second is a petition for writ of habeas corpus to be filed in the United States District Court for
the Eastern District of Pennsylvania. This court has the power to overturn the judgements of the
courts of the Commonwealth of Pennsylvania, if it concludes that the conviction was secured in
violation of rights guaranteed to criminal defendants under federal law. If the author is
unsuccessful in both of these petitions, he may appeal to the higher courts and ultimately to the
United States Supreme Court.
4.18
In addition, the State party submits that the author could make a request to the
Governor of Pennsylvania for clemency or to have his sentence commuted to a less severe one.
Prior flight does not preclude such an application. According to the State party, due to all of the
recourses available to a prisoner on death row, there have only been two executions in
Pennsylvania over the past 30 years.
4.19
Finally, in consideration of the admissibility of the communication as a whole, the
State party argues that it is incompatible with the provisions of the Covenant, under article 3 of
the Optional Protocol, and article 5, paragraph 1, of the Covenant. It is submitted that the
provisions of the Covenant should not be raised as a shield to criminal liability and counsel
should not be allowed to rely on the Covenant to support his argument that the author should not
have been prosecuted in Canada for crimes he committed there. Moreover, the Covenant should
not be used by those who through their own criminal acts have voluntarily waived certain rights.
In addition, the State party contends that counsel’s claims are contradictory. On the one hand he
CCPR/C/75/D/829/1998/Rev.1
page 8
claims that his removal from Canada to the United States violates articles 6 and 14, paragraph 5,
of the Covenant, on the other, that his detention violates articles 7 and 10. Canada is alleged
therefore, to violate the Covenant by removing him and by not removing him.
State party’s response on the merits
5.1
With respect to the allegation of a violation of articles 7 and 10, the State party submits
that contrary to what is implied in counsel’s submissions, the “death row phenomenon” is not
solely the psychological stress experienced by inmates sentenced to death, but relates also to
other conditions including, the periodic fixing of dates, followed by reprieves, physical abuse,
inadequate food and isolation.
5.2
With respect to counsel’s request for a stay of his deportation until such time as Canada
received an extradition request and an assurance that the death penalty would not be carried out,
the State party submits that the United States has no obligation to seek extradition of a fugitive
nor to give such assurances. The Government of Canada cannot be expected to wait for such a
request or to wait for the granting of such assurances before removing fugitives to the
United States. The danger of a fugitive going unpunished, the lack of authority to detain such a
fugitive while waiting for an extradition request and the importance of not providing a safe
haven for those accused of or found guilty of murder, militate against the existence of such an
obligation. Moreover, the Minister of Citizenship and Immigration also has a statutory
obligation to execute a removal order as soon as reasonably practicable.
5.3
On the alleged violation of article 6 and counsel’s contention that errors were committed
during his trial in Pennsylvania, which would have provided the basis for appeal, the State party
states that it is not for the Committee to review the facts and evidence of a trial unless it could be
shown to have been arbitrary or a denial of justice.8 It would be inappropriate, according to the
State party, to impose an obligation on it to review trial proceedings, particularly given that they
occurred in the United States.
5.4
In relation to the allegation of a violation of article 14, paragraph 5, the State party
submits that this article does not specify what type of review is required and refers to the
Travaux Préparatoires which it claims envisaged a broad provision that recognized the principle
of a right to review while leaving the type of review procedure to be determined in accordance
with their respective legal systems.9
5.5
The State party reiterates that the author’s case was reviewed by the Supreme Court of
Pennsylvania. It submits that, although originally in Pennsylvania a defendant who escaped
custody was held to have forfeited his right to a full appellate review, the Supreme Court of this
state has recently departed from this position, holding that a fugitive should be allowed to
exercise his post-trial rights in the same manner as he would have done had he not become a
fugitive. This is dependent, the State party clarifies, on whether the fugitive returns on time to
file post-trial motions or an appeal. It also notes that filing deadlines are subject to exceptions
which allow for late filing.10
CCPR/C/75/D/829/1998/Rev.1
page 9
Counsel’s comments on State party’s response on admissibility and the merits
6.1
In relation to the State party’s arguments on non-exhaustion of domestic remedies with
respect to the author’s detention in Canada, counsel submits that it was not until 1993, almost
5 years after his robbery convictions, that the author was ordered deported. The author could
have been granted early parole for the purposes of deportation to the United States and as such
could not have known, in 1988, that Canada would see fit to detain him for the full 10 years of
his sentence. Furthermore, the author could not have known in 1988 that although the
United States was willing to seek extradition, it would not do so “as the eventual deportation of
the author to the United States appeared less problematic”.
6.2
On the question of an appeal to the National Parole Board, including appeals of the
annual reviews, counsel submits that appeals of this nature would have been ineffective as, based
on the evidence, the Board could only find that “if released” the author would likely cause,
inter alia, serious harm to another person prior to sentence expiry. However, as in reality the
author would not have been released on completion of two thirds of his sentence, but would have
been turned over to immigration service to be deported, the prison authorities should not have
submitted the author’s case to the Parole Board for review in the first place. Once seized with
the case, the Board could not refuse to rule on the risk of harm were the author to be released.
6.3
On the issue of the possibility of applying for transfer to the United States pursuant to the
Transfer of Offenders Treaty, counsel argues that the consent of both States parties is necessary
for such a transfer and that Canada would never have agreed considering its refusal to deport him
before he had served his full term of imprisonment. Further, counsel argues that the onus should
not be on the author to pursue legal remedies, all of which would have been futile, to hasten his
return to the jurisdiction where he was sentenced to death.
6.4
With respect to a possible appeal of the author’s request for a stay of the deportation
order from the Superior Court of Quebec, counsel submits that this decision was rendered orally
on 6 August 1998, at approximately 20.00 hours. The Government of Canada removed the
author in the early hours of 7 August 1998, before any appeal could be launched. Therefore,
according to counsel, any appeal would have been moot and futile because the very subject of
the proceedings was no longer within Canadian jurisdiction.
6.5
In addition, counsel reiterates that the judge of the Superior Court declined jurisdiction to
stay the deportation because the Federal Court had refused to intervene. Counsel argues that
although the judge went on to analyse the case on the merits he should not have done so, having
declined jurisdiction and that an appeal, had it not been moot, would have been limited to the
question of whether he ought to have declined jurisdiction and not whether counsel had made a
case that the author’s rights under the Canadian Charter of Rights and Freedoms had been
violated.
6.6
Counsel contests the State party’s argument on incompatibility and states that the theory,
that if the author’s crimes in Canada had gone unpunished a precedent would have been set
whereby those subject to execution in one state could commit crimes with impunity in another
state, is inherently flawed. On the contrary, counsel argues that if death row inmates knew that
they would be prosecuted for crimes in Canada this would encourage them to commit such
CCPR/C/75/D/829/1998/Rev.1
page 10
crimes there in order to serve a prison sentence in Canada and prolong their life or indeed
commit murder in Canada and stave off execution in the United States indefinitely. If the author
had been “removed by way of extradition following apprehension in Canada in 1988, he would
have had little in the way of arguments to put forth”.
6.7
Counsel contests the State party’s arguments on the merits. Counsel confirms that he has
no authority for the proposition that detention in Canada for crimes committed in Canada can
constitute death row confinement as there is no such recorded instance. Counsel submits that the
mental anguish that characterizes death row confinement began with his apprehension in Canada
in 1988 and further “will only end upon his execution in the United States”.
6.8
On the State party’s point that the decision in Pratt and Morgan11 is authority for the
proposition that a prisoner cannot complain where delay is due to his own fault such as an
“escape from custody”, counsel submits that this is a misinterpretation. Counsel concedes that
the period when the author was at large is not computed as part of the delay but this period began
from the point of apprehension by the Canadian authorities. Further, counsel submits, the author
was not detained in Canada due to his escape but rather because he was prosecuted and
convicted of robbery.
6.9
On the State party’s reference to the conditions of detention in the Special Handling Unit,
counsel submits that this is the only super-maximum facility of its kind in Canada, and that the
author was subjected to “abhorrent living conditions”. Counsel also submits that the National
Parole Board’s decision to hold the author for the full 10 years of his sentence and the
subsequent annual reviews maintaining this decision constituted a form of reprieve, albeit
temporary, from his return to the United States where he was to be executed. In this regard,
counsel refers to the discussion of this issue in Pratt and Morgan (Privy Council) during which
Lord Griffith commented on the anguish attendant upon condemned prisoners who move from
impending execution to reprieve.
6.10
Counsel argues that to remove the author to a jurisdiction which limits his right to appeal
violates article 14, paragraph 5, of the Covenant, and it is submitted that article 6 of the
Covenant should be read with article 14, paragraph 5. On the issue of the Supreme Court of
Pennsylvania’s review of the author’s case, counsel maintains that this Court refused to entertain
any claims of error at trial. The Court, therefore, reviewed the evidence and then decided to
uphold the convictions and sentences. Issues such as the propriety of jury instructions are
excluded from this type of hearing.
6.11
Without wishing the Committee to consider the transcripts of the murder trial, counsel
also refers to alleged errors that occurred during the course of this trial that could have changed
the outcome of the case. By way of example, counsel refers to a question from the jury which
sought to clarify the difference between 1st and 3rd degree murder and manslaughter. The jury’s
request was not answered as the author’s attorney could not be located. When the attorney
appeared the next day, the jury was ready to deliver a verdict without receiving an answer to the
requests for clarification. Verdicts of 1st degree murder were then rendered.
CCPR/C/75/D/829/1998/Rev.1
page 11
6.12
Counsel submits that while a mechanism allowing limited review might be viewed as
acceptable in cases in which non-capital crimes have been committed, it is submitted that it is
wholly unacceptable, where the defendant’s life hangs in the balance, that he finds himself
foreclosed from having any claim of error at trial reviewed.
6.13
On the possibility of seeking relief under the PCRA, counsel confirms that the author did
indeed seek relief by filing such a motion after the author was deported to the United States.
However, this motion was dismissed on 21 July 1999, and on relying on the previous case of
Commonwealth v. Kindler, it was argued that the author’s fugitive status had disqualified him
from seeking the relief claimed. Counsel further submits that as the author’s application for
relief under the PCRA was dismissed he cannot seek federal habeas corpus relief, as PCRA relief
was refused on the basis of the failure to respect a State rule.
6.14
On the possibility of a request to the Governor to seek commutation of his sentence to
life, Counsel states that the Governor is an elected politician who has no mandate to engage in
independent, neutral reviews of judicial decisions. It is submitted that his/her function in this
respect does not satisfy sections 14 (5) and 6 of the Covenant.
Committee’s consideration on admissibility
7.1
Before considering any claim contained in a communication, the Human Rights
Committee must decide, in accordance with rule 87 of its rules of procedure, whether the claim
is admissible under the Optional Protocol to the Covenant.
7.2
As required under article 5, paragraph 2 (a) of the Optional Protocol, the Committee has
ascertained that the same matter is not being examined under another international procedure of
international investigation or settlement.
7.3
As regards the author’s complaint relating to the prison conditions in Canada, the
Committee finds that the author has not substantiated this claim for the purposes of admissibility.
7.4
On the issue of an alleged violation of articles 7 and 10 of the Covenant in connection
with the author’s detention in Canada with the prospect of capital punishment awaiting him in
the United States at the conclusion of his term of imprisonment in Canada, the Committee notes
that the author was not on death row in Canada, but serving a 10-year sentence for robbery.
Consequently, the author has failed to raise an issue under articles 7 and 10 of the Covenant in
this respect and this part of the communication is inadmissible under articles 2 and 3 of the
Optional Protocol.
7.5
As to the alleged violation of article 6 for detaining the author in Canada for crimes
committed therein, the Committee considers that counsel has not substantiated for the purposes
of admissibility how the author’s right to life was violated by his detention in Canada for crimes
committed there. This aspect of the communication is inadmissible under article 2 of the
Optional Protocol.
7.6
The State party has argued that the author cannot make use of the Optional Protocol, to
complain about his deportation to the United States, as he did not appeal his request for a stay of
CCPR/C/75/D/829/1998/Rev.1
page 12
the deportation order from the Superior Court of Quebec to the Court of Appeal and therefore
has not exhausted domestic remedies. The Committee observes counsel’s response, that an
appeal would have been ineffective as it would only have dealt with the issue of jurisdiction and
not with the merits of the case, and that the State party removed the author within hours of the
Superior Court’s decision thereby making any attempt to appeal this decision moot. The
Committee notes that the State party has not contested the speed with which the author was
deported, following the decision of the Superior Court and, therefore, irrespective of whether the
author could have appealed this case on the merits, the Committee finds that it would be
unreasonable to expect the author to appeal such a case subsequent to his deportation, the very
act of which is claimed to be a violation of the Covenant. Accordingly, the Committee cannot
accept the State party’s argument that this part of the communication is inadmissible for failure
to exhaust domestic remedies.
7.7
As regards the claim that the author’s rights under article 14, paragraph 5 of the Covenant
were violated, and that Canada therefore violated article 6 by deporting the author, the
Committee observes that the author had the right under Pennsylvanian law to a full appeal
against his conviction and sentence. Furthermore, the Committee notes that, according to the
documents provided by the parties, while the extent of the appeal became limited when the
author became a fugitive, the author’s conviction and sentence were reviewed by the
Supreme Court of Pennsylvania, which must review all death penalty cases. According to these
documents, the author was represented by counsel and the Court reviewed the evidence and law
as well as the elements required to sustain a first-degree murder conviction and capital
punishment. In these particular circumstances, the Committee finds that the author has not
substantiated, for the purposes of admissibility, his claim that his right under article 14,
paragraph 5, was violated and that for this reason, his deportation from Canada involved a
violation by Canada of article 6 of the Covenant.
7.8
Notwithstanding the Committee’s decision that the claim based on article 14,
paragraph 5, is inadmissible, the Committee is of the opinion that the facts presented by the
author raise two issues under the Covenant that are admissible and should be considered on the
merits:
1.
As Canada has abolished the death penalty did it violate the author’s right to life
under article 6, his right not to be subjected to torture or to cruel, inhuman or degrading
treatment or punishment under article 7, or his right to an effective remedy under
article 2, paragraph 3, of the Covenant by deporting him to a State in which he was
under sentence of death without ensuring that that sentence would not be carried out?
2.
The State party has conceded that the author was deported to the United States
before he could exercise his right to appeal the rejection of his application for a stay of
his deportation before the Quebec Court of Appeal. As a consequence the author was not
able to pursue any further remedies that might be available. By deporting the author to a
State in which he was under sentence of death before he could exercise all his rights to
challenge that deportation did the State party violate the author’s rights under articles 6,
7 and 2 of the Covenant?
CCPR/C/75/D/829/1998/Rev.1
page 13
The Committee is of the opinion that given the seriousness of these questions the parties
should be afforded the opportunity to comment on them before the Committee expresses its
Views on the merits. Furthermore, the parties are requested to provide information on the
current procedural situation of the author in the United States and on any prospective appeals he
might be able to pursue. The State party is requested to supplement its submissions on the merits
by relating to the above questions and request for information as soon as possible, but in any
event within three months of the date of transmittal of this decision. Any statements received
from the State party shall be communicated to the author who shall be requested to respond with
his comments within two months.
CCPR/C/75/D/829/1998/Rev.1
page 14
Individual opinion by Committee member Mr. Nisuko Ando
With regret, I must point out that I am unable to share the Committee’s conclusion set
forth in paragraph 7.8 in which it draws attention of both the author and the State party and
requests them to address the two issues mentioned therein which relate to articles 6, 7 and 2 of
the Covenant.
In its decision on admissibility of the communication the Committee makes clear that the
communication is inadmissible as far as it relates to issues under articles 7, 10 (para. 7.4),
article 6 (para. 7.5) and article 14 (5) (para. 7.7), and yet the Committee concludes that the facts
presented by the author raise the two issues mentioned above. It is my understanding that in the
present communication both the author and the State party have presented their cases in view of
the Committee’s earlier jurisprudence on Case No. 470/1991 (J. Kindler v. Canada), because in
those two communications the relevant facts are very similar or almost identical. The
Committee’s line of argument in the present communication also suggests this. Under the
circumstances I consider it illogical for the Committee to state that the communication is
inadmissible in matters relating to articles 7, 10, 6 and 14 (5), on the one hand, but that it raises
issues under articles 6, 7 and 2, on the other, unless it specifies how these apparent contradictions
are to be solved. A mere reference to “the seriousness of these questions” (para. 7.8) does not
suffice: Hence, this individual opinion!
(Signed): Mr. Nisuke Ando
CCPR/C/75/D/829/1998/Rev.1
page 15
Individual opinion submitted by Mrs. Christine Chanet
Unlike its position in the case of Kindler v. Canada, in this case the Committee directly
addresses the fundamental question of whether Canada, having abolished the death penalty,
violated the author’s right to life under article 6 of the Covenant by extraditing him to a State
where he faced capital punishment, without ascertaining that that sentence would not in fact be
carried out.
I can only subscribe to this approach, which I advocated and had wished to see applied in
the Kindler case; indeed, that was the basis of the individual opinion I submitted in that case.
In my view, asking that question obviates the need for a response such as the Committee
gives in this case concerning a violation by Canada of article 14, paragraph 5, of the Covenant.
The position adopted by the Committee on this point implies that it declares itself
competent to consider the author’s arguments concerning a possible violation of article 14,
paragraph 5, of the Covenant, as a result of irregularities in the proceedings taken against the
author in the United States, a position identical to that adopted in the Kindler case (para. 14.3).
In my view, while the Committee can declare itself competent to assess the degree of risk
to life (death sentence) or to physical integrity (torture), it is less obvious that it can base an
opinion that a violation has occurred in a State party to the Covenant on a third State’s failure to
observe a provision of the Covenant.
Taking the opposite position would amount to requiring a State party that called into
question respect for human rights in its relations with a third State to be answerable for respect
by that third State for all rights guaranteed by the Covenant vis-à-vis the person concerned.
And why not? It would certainly be a step forward in the realization of human rights, but
legal and practical problems would immediately arise.
What is a third State, for example? What of States non-parties to the Covenant? What of
a State that is party to the Covenant but does not participate in the procedure? Does the
obligation of a State party to the Covenant in its relations with third States cover all the rights in
the Covenant or only some of them? Could a State party to the Covenant enter a reservation to
exclude implementation of the Covenant from its bilateral relations with another State?
Even setting aside the complex nature of the answers to these questions, applying the
“maximalist” solution in practice is fraught with problems.
For while the Committee can ascertain that a State party has not taken any undue risks,
and may perhaps give an opinion on the precautions taken by the State party to that end, it can
never really be sure whether a third State has violated the rights guaranteed by the Covenant if
that State is not a party to the procedure.
CCPR/C/75/D/829/1998/Rev.1
page 16
In my view, therefore, the Committee should in this case have refrained from giving an
opinion with respect to article 14, paragraph 5, and should have awaited a reply from the State
party on the fundamental issue of expulsion by an abolitionist State to a State where the expelled
individual runs the risk of capital punishment, since the terms in which the problem of article 14,
paragraph 5, is couched will vary depending whether the answer to the first question is
affirmative or negative.
For if an abolitionist State cannot expel or extradite a person to a State where that person
could be executed, the issue of the regularity of the procedure followed in that State becomes
irrelevant.
If, on the other hand, the Committee maintains the position adopted in the Kindler case, it
will need to make a thorough study of the problem of States parties’ obligations under the
Covenant in their relations with third States.
(Signed): Ms. Christine Chanet
CCPR/C/75/D/829/1998/Rev.1
page 17
Individual opinion by Committee member
Mr. Hipólito Solari-Yrigoyen (dissenting)
I disagree with regard to the present communication on the grounds set forth below:
The Committee is of the view that the author’s counsel has substantiated for the purposes
of admissibility, his allegation that the State party has violated his right to life under article 6 and
article 14, paragraph 5, of the Covenant by deporting him to the United States, where he has
been sentenced to death, and that his claim is compatible with the Covenant. The Committee
therefore declares that this part of the communication is admissible and should be considered on
the merits.
Committee’s consideration of the merits
With regard to a potential violation by Canada of article 6 of the Covenant for having
deported the author to face the imposition of the death penalty in the United States, the
Committee refers to the criteria set forth in its prior jurisprudence. Namely, for States that have
abolished capital punishment and that extradite a person to a country where that person may face
the imposition of a death penalty, the extraditing State must ensure itself that the person is not
exposed to a real risk of a violation of his rights under article 6 of the Covenant.12
The Committee notes that the State party’s argument in the present communication, that
several additional review recourses were available to the author, such as filing a petition in the
Court of Common Pleas under Pennsylvania’s Post-Conviction Relief Act, filing a writ of
habeas corpus in the United States District Court for the Eastern District of Pennsylvania,
making a request to the Governor of Pennsylvania for clemency, and appealing to the
Pennsylvania Supreme Court. The Committee observes that the automatic review of the author’s
sentence by the Pennsylvania Supreme Court took place in absentia, when the author was in
prison in Canada. Although the author was represented by counsel, the Supreme Court did not
undertake a full review of the case, nor did it review the sufficiency of evidence, possible errors
at trial, or propriety of sentence. A review of this nature is not compatible with the right
protected under article 14, paragraph 5, of the Covenant, which calls for a full evaluation of the
evidence and the court proceedings. The Committee considers that such limitations in a capital
case amount to a denial of a fair trial, which is not compatible with the right protected under
article 14, paragraph 5, of the Covenant, and that the author’s flight from the United States to
avoid the death penalty does not absolve Canada from its obligations under the Covenant. In the
light of the foregoing, the Committee considers the State party accountable for the violation of
article 6 of the Covenant as a consequence of the violation of article 14, paragraph 5.
The Committee has noted the State party’s argument that there was no law under which
it could have detained the author on expiry of his sentence and therefore had to deport him.
The Committee takes the view that this response is unsatisfactory for three reasons, namely:
(1) Canada deported the author knowing that he would not have the right to appeal in a capital
case; (2) the speed with which Canada deported the author did not allow him the opportunity to
appeal the decision to remove him; and (3) in the present case, Canada took a unilateral decision
and therefore cannot invoke its obligations under the Extradition Treaty with the United States,
since at no time did the United States request the extradition.
CCPR/C/75/D/829/1998/Rev.1
page 18
The Committee, acting under article 5, paragraph 4, of the Optional Protocol finds that
Canada has violated its obligations under article 2 of the Covenant to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the Covenant because,
when it deported the author to the United States, it did not take sufficient precautions to ensure
that his rights under article 6 and to article 14, paragraph 5, of the Covenant would be fully
observed.
The Human Rights Committee requests the State party to do everything possible, as a
matter of urgency to avoid the imposition of the death penalty or to provide the author with a full
review of his conviction and sentence. The State party has the obligation to ensure that similar
violations do not occur in the future.
Bearing in mind that by signing the Optional Protocol, the State party has recognized the
competence of the Committee to determine whether there has been a violation of the Covenant or
not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the
Covenant to provide an effective and enforceable remedy in case a violation has been
established, the Committee wishes to receive from the State party, within 90 days, information
about the measures taken to give effect to its Views. The State party is also requested to publish
these Views.
(Signed): Hipólito Solari-Yrigoyen
Notes
1 Counsel states that the mode of execution was subsequently changed to execution by lethal
injection.
2 As later explained by the State party, pursuant to the Corrections and Conditional Release Act,
a prisoner in Canada is entitled to be released after having served two thirds of his sentence
(i.e. the statutory release date). However, Correctional Services of Canada reviews each case,
through the National Parole Board, to determine whether, if released on the statutory release
date, there are reasonable grounds to believe that the released prisoner would commit an offence
causing death or serious harm. Correctional Services of Canada did so find with respect to the
author.
3 As later explained by the State party and evidenced in the documentation provided, the
Minister informed the author that there was no provision under sections 49 and 50 of the
Immigration Act to defer removal pending receipt of an extradition request or order. However,
in the event that an extradition request was received by the Minister of Justice, the removal order
would be deferred pursuant to paragraph 50 (1) (a) of the Immigration Act. An extradition
request was never received.
CCPR/C/75/D/829/1998/Rev.1
page 19
4 The State party refers to the following cases Pratt and Morgan v. Jamaica (Nos. 210/1986,
225/1987), Barrett and Sutcliffe v. Jamaica (Nos. 270/1988, 271/1988), Kindler v. Canada
(No. 470/1990), Johnson v. Jamaica (No. 588/1994) and Francis v. Jamaica (No. 606/1994).
5 The State party refers to Pratt and Morgan, supra, Wallen and Baptiste (No. 2) (1994),
45 W.I.R. 405 at 436 (C.A., Trinidad & Tobago).
6 Kindler, supra.
7 Reid v. Jamaica (No. 250/1987).
8 McTaggart v. Jamaica (No. 749/1997).
9 The State party refers to M. Nowak, United Nations Covenant on Civil and Political Rights:
CCPR Commentary at 266.
10 The State party refers to Commonwealth of Pennsylvania v. Deemer.
11 Pratt and Morgan v. Jamaica (Nos. 210/1986, 225/1987).
12 Communication No. 692/1996, A.R.J. v Australia; No. 706/1996, T. v. Australia;
No. 470/1991, Kindler v. Canada; No. 469/1991, Chitat Ng v. Canada and No. 486/1992,
Cox v. Canada.
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