The European Court has found in a famous case that subjecting persons to the death row phenomenon amounts to inhuman and degrading treatment. This case is also discussed under the right to life, Extradition .
Soering v. The United Kingdom
European Court of Human Rights
Application No. 14038/88
Judgement of 7 July 1989
Keywords: torture – extradition - death penalty - death row phenomenon, as cruel and inhuman treatment - fair trial - effective remedy
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AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
11. The applicant, Mr Jens Soering, was born on 1 August 1966 and is a German national. He is currently detained in prison in England pending extradition to the United States of America to face charges of murder in the Commonwealth of Virginia.
12. The homicides in question were committed in Bedford County, Virginia, in March 1985. The victims, William Reginald Haysom (aged 72) and Nancy Astor Haysom (aged 53), were the parents of the applicant’s girlfriend, Elizabeth Haysom, who is a Canadian national. Death in each case was the result of multiple and massive stab and slash wounds to the neck, throat and body. At the time the applicant and Elizabeth Haysom, aged 18 and 20 respectively, were students at the University of Virginia. They disappeared together from Virginia in October 1985, but were arrested in England in April 1986 in connection with cheque fraud.
13. The applicant was interviewed in England between 5 and 8 June 1986 by a police investigator from the Sheriff’s Department of Bedford County. In a sworn affidavit dated 24 July 1986 the investigator recorded the applicant as having admitted the killings in his presence and in that of two United Kingdom police officers. [?]
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During the course of the present proceedings the Virginia authorities informed the United Kingdom Government that Mr Updike was not planning to provide any further assurances and intended to seek the death penalty in Mr Soering’s case because the evidence, in his determination, supported such action.
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This request was rejected, and on 3 August 1988 the Secretary of State signed a warrant ordering the applicant’s surrender to the United States authorities. However, the applicant has not been transferred to the United States by virtue of the interim measures indicated in the present proceedings firstly by the European Commission and then by the European Court (see paragraphs 4 above and 77 below).
25. On 5 August 1988 the applicant was transferred to a prison hospital where he remained until early November 1988 under the special regime applied to suicide-risk prisoners.
According to psychiatric evidence adduced on behalf of the applicant (report dated 16 March 1989 by Dr D. Somekh), the applicant’s dread of extreme physical violence and homosexual abuse from other inmates in death row in Virginia is in particular having a profound psychological effect on him. The psychiatrist’s report records a mounting desperation in the applicant, together with objective fears that he may seek to take his own life.
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AS TO THE LAW
I. ALLEGED BREACH OF ARTICLE 3 (art. 3)
80. The applicant alleged that the decision by the Secretary of State for the Home Department to surrender him to the authorities of the United States of America would, if implemented, give rise to a breach by the United Kingdom of Article 3 (art. 3) of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Applicability of Article 3 (art. 3) in cases of extradition
81. The alleged breach derives from the applicant’s exposure to the so-called “death row phenomenon”. This phenomenon may be described as consisting in a combination of circumstances to which the applicant would be exposed if, after having been extradited to Virginia to face a capital murder charge, he were sentenced to death.
82. In its report (at paragraph 94) the Commission reaffirmed “its case-law that a person’s deportation or extradition may give rise to an issue under Article 3 (art. 3) of the Convention where there are serious reasons to believe that the individual will be subjected, in the receiving State, to treatment contrary to that Article (art. 3)”.
The Government of the Federal Republic of Germany supported the approach of the Commission, pointing to a similar approach in the case-law of the German courts.
The applicant likewise submitted that Article 3 (art. 3) not only prohibits the Contracting States from causing inhuman or degrading treatment or punishment to occur within their jurisdiction but also embodies an associated obligation not to put a person in a position where he will or may suffer such treatment or punishment at the hands of other States. For the applicant, at least as far as Article 3 (art. 3) is concerned, an individual may not be surrendered out of the protective zone of the Convention without the certainty that the safeguards which he would enjoy are as effective as the Convention standard.
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84. The Court will approach the matter on the basis of the following considerations.
85. As results from Article 5§ 1 (f) (art. 5-1-f), which permits “the lawful ? detention of a person against whom action is being taken with a view to ? extradition”, no right not to be extradited is as such protected by the Convention. Nevertheless, in so far as a measure of extradition has consequences adversely affecting the enjoyment of a Convention right, it may, assuming that the consequences are not too remote, attract the obligations of a Contracting State under the relevant Convention guarantee [?]. What is at issue in the present case is whether Article 3 (art. 3) can be applicable when the adverse consequences of extradition are, or may be, suffered outside the jurisdiction of the extraditing State as a result of treatment or punishment administered in the receiving State.
86. Article 1 (art. 1) of the Convention, which provides that “the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I”, sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to “securing” (“reconnaître” in the French text) the listed rights and freedoms to persons within its own “jurisdiction”. Further, the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States. Article 1 (art. 1) cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention. Indeed, as the United Kingdom Government stressed, the beneficial purpose of extradition in preventing fugitive offenders from evading justice cannot be ignored in determining the scope of application of the Convention and of Article 3 (art. 3) in particular.
In the instant case it is common ground that the United Kingdom has no power over the practices and arrangements of the Virginia authorities which are the subject of the applicant’s complaints. It is also true that in other international instruments cited by the United Kingdom Government - for example the 1951 United Nations Convention relating to the Status of Refugees (Article 33), the 1957 European Convention on Extradition (Article 11) and the 1984 United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Article 3) - the problems of removing a person to another jurisdiction where unwanted consequences may follow are addressed expressly and specifically.
These considerations cannot, however, absolve the Contracting Parties from responsibility under Article 3 (art. 3) for all and any foreseeable consequences of extradition suffered outside their jurisdiction.
87. In interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms [?]. Thus, the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective [?]. In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with “the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society” [?].
88. Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) in time of war or other national emergency. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 (art. 3) enshrines one of the fundamental values of the democratic societies making up the Council of Europe. [?].
The question remains whether the extradition of a fugitive to another State where he would be subjected or be likely to be subjected to torture or to inhuman or degrading treatment or punishment would itself engage the responsibility of a Contracting State under Article 3 (art. 3). That the abhorrence of torture has such implications is recognised in Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , which provides that “no State Party shall ? extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture”. The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 (art. 3) of the European Convention. It would hardly be compatible with the underlying values of the Convention, that “common heritage of political traditions, ideals, freedom and the rule of law” to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3 (art. 3), would plainly be contrary to the spirit and intendment of the Article, and in the Court’s view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article (art. 3).
89. What amounts to “inhuman or degrading treatment or punishment” depends on all the circumstances of the case (see paragraph 100 below). Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.
90. It is not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention. However, where an applicant claims that a decision to extradite him would, if implemented, be contrary to Article 3 (art. 3) by reason of its foreseeable consequences in the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that Article (art. 3) (see paragraph 87 above).
91. In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 (art. 3) of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.
B. Application of Article 3 (art. 3) in the particular circumstances of the present case
92. The extradition procedure against the applicant in the United Kingdom has been completed, the Secretary of State having signed a warrant ordering his surrender to the United States authorities (see paragraph 24 above); this decision, albeit as yet not implemented, directly affects him. It therefore has to be determined on the above principles whether the foreseeable consequences of Mr Soering’s return to the United States are such as to attract the application of Article 3 (art. 3). This inquiry must concentrate firstly on whether Mr Soering runs a real risk of being sentenced to death in Virginia, since the source of the alleged inhuman and degrading treatment or punishment, namely the “death row phenomenon”, lies in the imposition of the death penalty. Only in the event of an affirmative answer to this question need the Court examine whether exposure to the “death row phenomenon” in the circumstances of the applicant’s case would involve treatment or punishment incompatible with Article 3 (art. 3).
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2. Whether in the circumstances the risk of exposure to the “death row phenomenon” would make extradition a breach of Article 3 (art. 3)
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(c) Conclusion
111. For any prisoner condemned to death, some element of delay between imposition and execution of the sentence and the experience of severe stress in conditions necessary for strict incarceration are inevitable. The democratic character of the Virginia legal system in general and the positive features of Virginia trial, sentencing and appeal procedures in particular are beyond doubt. The Court agrees with the Commission that the machinery of justice to which the applicant would be subject in the United States is in itself neither arbitrary nor unreasonable, but, rather, respects the rule of law and affords not inconsiderable procedural safeguards to the defendant in a capital trial. Facilities are available on death row for the assistance of inmates, notably through provision of psychological and psychiatric services (see paragraph 65 above).
However, in the Court’s view, having regard to the very long period of time spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant’s extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3 (art. 3). A further consideration of relevance is that in the particular instance the legitimate purpose of extradition could be achieved by another means which would not involve suffering of such exceptional intensity or duration.
Accordingly, the Secretary of State’s decision to extradite the applicant to the United States would, if implemented, give rise to a breach of Article 3 (art. 3).
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Comment
In this case the European Court found that extraditing the applicant to the United States, where he faced the death penalty and a long period on death row would subject him to the ‘death row phenomenon’ in violation of Article 3.
In the recent cases of G.B v. Bulgaria (Application No. 42346/98, Judgement of 11 March 2004) and Iorgov v. Bulgaria (Application No. 40653/98, Judgement of 11 March 2004) with regard to the application of Article 3 to the matter of detention, the European Court stressed that the suffering and humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. However, the Court was also careful to emphasise that the state must ensure that a person is detained under conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured. As regards the death penalty being imposed, and given that there was real possibility of it being carried out, the Court observed that the personal circumstances of the condemned person, the conditions of detention awaiting execution and the length of detention prior to execution are examples of factors that come into play in evaluating whether the treatment or punishment endured by the condemned person falls under Article 3. Therefore, according to the Court, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant. In light of the available information about the abolition of the death penalty in Bulgaria and the safeguards that existed during the relevant period, as well as the medical assistance available to the applicant, the Court considered that the applicant’s situation was not comparable to that of persons on ‘death row’ in countries practising executions, and consequently, any anguish caused by his being sentenced to the death penalty, which could not be effectively carried out, did not amount to inhuman treatment. See however, Ilascu et al. v. Moldova and Russia (Application No. 48787/99, Judgement of 8 July 2004). The applicants were arrested and detained in the ‘Moldavian Republic of Transdniestria’ (MRT), a region of Moldova known as Transdniestria. The ‘Supreme Court of the MRT’ sentenced Mr Ilascu to death and ordered the confiscation of his property. This case is also discussed in due process,Actual remedies.
Ilascu et al. v. Moldova and Russia
European Court of Human Rights
Application No. 48787/99
Judgement of 8 July 2004
Keywords: fair trial – property - arbitrary arrest or detention – life - inhuman treatment or punishment - respect for correspondence – torture - death row phenomenon
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434. The applicant was sentenced to death on 9 December 1993 and detained until his release on 5 May 2001. [?].
435. During the very long period he spent on death row the applicant lived in the constant shadow of death, in fear of execution. Unable to exercise any remedy, he lived for many years, including the time after the Convention’s entry into force, in conditions of detention apt to remind him of the prospect of his sentence being enforced [?].
In particular, the Court notes that after sending a letter to the Moldovan Parliament in March 1999 Mr Ilascu was savagely beaten by the warders at Tiraspol Prison, who threatened to kill him [?]. After that incident he was denied food for two days and light for three [?].
As to the mock executions which took place before the Convention’s entry into force [?], there is no doubt that the effect of such barbaric acts was to increase the anxiety felt by the applicant throughout his detention about the prospect of his execution.
436. The anguish and suffering he felt were aggravated by the fact that the sentence had no legal basis or legitimacy for Convention purposes. The “Supreme Court of the MRT” which passed sentence on Mr Ilascu was set up by an entity which is illegal under international law and has not been recognised by the international community. That “court” belongs to a system which can hardly be said to function on a constitutional and legal basis reflecting a judicial tradition compatible with the Convention. That is evidenced by the patently arbitrary nature of the circumstances in which the applicants were tried and convicted, as they described them in an account which has not been disputed by the other parties [?] and as described and analysed by the institutions of the OSCE [?].
437. The judgment of the Supreme Court of Moldova setting aside the applicant’s conviction [?] confirmed the unlawful and arbitrary nature of the judgment of 9 December 1993.
438. As regards the applicant’s conditions of detention while on death row, the Court notes that Mr Ilascu was detained for eight years, [?] in very strict isolation: he had no contact with other prisoners, no news from the outside - since he was not permitted tosend or receive mail - and no right to contact his lawyer or receive regular visits from his family. His cell was unheated, even in severe winter conditions, and had no natural light source or ventilation. The evidence shows that Mr Ilascu was also deprived of food as a punishment and that in any event, given the restrictions on receiving parcels, even the food he received from outside was often unfit for consumption. The applicant could take showers only very rarely, often having to wait several months between one and the next. On this subject the Court refers to the conclusions in the report produced by the CPT following its visit to Transdniestria in 2000 [?], in which it described isolation for so many years as indefensible.
The applicant’s conditions of detention had deleterious effects on his health, which deteriorated in the course of the many years he spent in prison. Thus, he did not receive proper care, having been deprived of regular medical examinations and treatment [?] and dietetically appropriate meals. In addition, owing to the restrictions on receiving parcels, he could not be sent medicines and food to improve his health.
439. The Court notes with concern the existence of rules granting a discretionary power in relation to correspondence and prison visits, exercisable by both prison warders and other authorities, and emphasises that such rules are arbitrary and incompatible with the appropriate and effective safeguards against abuses which any prison system in a democratic society must put in place. Moreover, in the present case, such rules made the applicant’s conditions of detention even harsher.
440. The Court concludes that the death sentence imposed on the applicant coupled with the conditions he was living in and the treatment he suffered during his detention after ratification, account being taken of the state he was in after spending several years in those conditions before ratification, were particularly serious and cruel and must accordingly be considered acts of torture within the meaning of Article 3 of the Convention.
There has therefore been a failure to observe the requirements of Article 3.
Comment
Here the Court concluded that the death sentence taken together with the conditions, including the length of time and treatment on death row, amounted to torture within the meaning of Article 3.
The Human Rights Committee does not concur with the European Court as it has not found detention on death row per se in violation of the right to freedom from torture and ill-treatment though it has been argued in many cases that the death row phenomenon violates Article 7. Although it remains the position of the Committee that detention for a specific period of time on death row does not constitute a violation of Article 7, it has found violations where there were further compelling circumstances, such as the documented deterioration of the mental health of the convicted person. Hence, the difference between the Committee’s position and that of the European Court as reflected in its ruling in the Soering case should not be exaggerated.
Johnson (Errol) v. Jamaica
Human Rights Committee
Communication No. 588/1994
Views of 22 March 1996
Keywords: death penalty - death row phenomenon - detention conditions
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Facts
1. The author of the communication is Errol Johnson, a Jamaican citizen who, at the time of submission of his communication, was awaiting execution at St. Catherine District Prison, Jamaica. He claims to be a victim of violations by Jamaica of articles 6, 7, 10, paragraph 1, and 14, paragraphs 1, 3 (c), (g) and 5, of the International Covenant on Civil and Political Rights. The author is represented by counsel. In early 1995, the offence of which the author was convicted was classified as non-capital murder, and his death sentence was commuted to life imprisonment on 16 March 1995.
AUTHOR’S SUBMISSIONS:
2.1 The author was, together with a co-defendant, Irvine Reynolds, convicted of the murder of one Reginald Campbell and sentenced to death on 15 December 1983 in the Clarendon Circuit Court. His application for leave to appeal was dismissed by the Court of Appeal on 29 February 1988; a reasoned appeal judgement was issued on 14 March 1988. On 9 July 1992, at separate hearings, the Judicial Committee of the Privy Council dismissed the petitions for special leave to appeal of the author and of Mr. Reynolds.
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THE COMPLAINT:
3.1 It is argued that the author was detained on death row for over 10 years, and that if he were to be executed after such a delay, this would amount to cruel and degrading treatment and/or punishment, in violation of article 7 of the Covenant. In substantiation of his claim, counsel refers to the findings of the Judicial Committee of the Privy Council in Pratt and Morgan v. Attorney-General of Jamaica and of the Supreme Court of Zimbabwe in a recent case. The fact that the author was held on death row for so long under the appalling conditions of detention at St. Catherine District Prison is said to amount in itself to a violation of article 7.
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Views
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8.1 The Committee first has to determine whether the length of the author’s detention on death row since December 1983. i.e. over 11 years, amounts to a violation of articles 7 and 10, paragraph 1, of the Covenant. Counsel alleged a violation of these articles merely by reference to the length of time Mr. Johnson has spent confined to the death row section of St. Catherine District Prison. While a period of detention on death row of well over 11 years is certainly a matter of serious concern, it remains the jurisprudence of this Committee that detention for a specific period of time does not amount to a violation of articles 7 and 10 (1) of the Covenant in the absence of some further compelling circumstances. The Committee is aware that its jurisprudence has given rise to controversy and wishes to set out its position in detail.
8.2 The question that must be addressed is whether the mere length of the period a condemned person spends confined to death row may constitute a violation by a State party of its obligations under articles 7 and 10 not to subject persons to cruel, inhuman and degrading treatment or punishment and to treat them with humanity. In addressing this question, the following factors must be considered.
(a) The Covenant does not prohibit the death penalty, though it subjects its use to severe restrictions. As detention on death row is a necessary consequence of imposing the death penalty, 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.
(b) While the Covenant does not prohibit the death penalty, the Committee has taken the view, which has been reflected in the Second Optional Protocol to the Covenant, that article 6 “refers generally to abolition in terms which strongly suggest that abolition is desirable”. (See General Comment 6 [16] of 27 July 1982; also see Preamble to the Second Optional Protocol to the Covenant Aiming at the Abolition of the Death Penalty.) Reducing recourse to the death penalty may therefore be seen as one of the objects and purposes of the Covenant.
(c) The provisions of the Covenant must be interpreted in the light of the Covenant’s objects and purposes (article 31 of the Vienna Convention on the Law of Treaties ). As one of these objects and purposes is to promote reduction in the use of the death penalty, an interpretation of a provision in the Covenant that may encourage a State party that retains the death penalty to make use of that penalty should, where possible, be avoided.
8.3 In light of these factors, we must examine the implications of holding the length of detention on death row, per se, to be in violation of articles 7 and 10. The first, and most serious, implication is that if a State party executes a condemned prisoner after he has spent a certain period of time on death row, it will not be in violation of its obligations under the Covenant, whereas if it refrains from doing so, it will violate the Covenant. An interpretation of the Covenant leading to this result cannot be consistent with the Covenant’s object and purpose. The above implication cannot be avoided by refraining from determining a definite period of detention on death row, after which there will be a presumption that detention on death row constitutes cruel and inhuman punishment. Setting a cut-off date certainly exacerbates the problem and gives the State party a clear deadline for executing a person if it is to avoid violating its obligations under the Covenant. However, this implication is not a function of fixing the maximum permissible period of detention on death row, but of making the time factor, per se, the determining one. If the maximum acceptable period is left open, States parties which seek to avoid overstepping the deadline will be tempted to look to the decisions of the Committee in previous cases so as to determine what length of detention on death row the Committee has found permissible in the past.
8.4 The second implication of making the time factor per se the determining one, i.e. the factor that turns detention on death row into a violation of the Covenant, is that it conveys a message to States parties retaining the death penalty that they should carry out a capital sentence as expeditiously as possible after it was imposed. This is not a message the Committee would wish to convey to States parties. Life on death row, harsh as it may be, is preferable to death. Furthermore, experience shows that delays in carrying out the death penalty can be the necessary consequence of several factors, many of which may be attributable to the State party. sometimes a moratorium is placed on executions while the whole question of the death penalty is under review. At other times the executive branch of government delays executions even though it is not feasible politically to abolish the death penalty. The Committee would wish to avoid adopting a line of jurisprudence which weakens the influence of factors that may very well lessen the number of prisoners actually executed. It should be stressed that by ad opting the approach that prolonged detention on death row cannot, per se, be regarded as cruel and inhuman treatment or punishment under the Covenant, the Committee does not wish to convey the impression that keeping condemned prisoners on death row for many years is an acceptable way of treating them. It is not. However, the cruelty of the death row phenomenon is first and foremost a function of the permissibility of capital punishment under the Covenant. This situation has unfortunate consequences.
8.5 Finally, to hold that prolonged detention on death row does not, per se, constitute a violation of articles 7 and 10, does not imply that other circumstances connected with detention on death row may not turn that detention into cruel, inhuman and degrading treatment or punishment. The jurisprudence of the Committee has been that where compelling circumstances of the detention are substantiated, that detention may constitute a violation of the Covenant. This jurisprudence should be maintained in future cases. 8.6 In the present case, neither the author nor his counsel have pointed to any compelling circumstances, over and above the length of the detention on death row, that would turn Mr. Johnson’s detention into a violation of articles 7 and 10. The Committee therefore concludes that there has been no violation of these provisions.
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Comment
In this case the Committee concluded that Johnson’s detention on death row did not violate the ICCPR , though a significant minority (six Committee members) gave individual opinions advocating a more flexible position; that the ‘death row phenomenon be assessed in each individual case.’ Para. 8.4 quite openly gives the justification for the majority position: the Committee does not wish to convey any message to the effect that states should expedite executions.
The Committee has found that in special circumstances conditions on death row may violate Article 7.
Johnson (Clive) v. Jamaica
Human Rights Committee
Communication No. 592/1994
Views of 20 October 1998
Keywords: life - death penalty, persons below eighteen years of age – juveniles - inhuman treatment or punishment - degrading treatment or punishment
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Facts:
1. The author of the communication is Clive Johnson, a Jamaican citizen, at the time of submission of the communication awaiting execution in St. Catherine District Prison, Jamaica. Following the reclassification of his offence as non-capital, the author’s death sentence was commuted to life imprisonment. He claims to be a victim of a violation by Jamaica of articles 6, 7, 10, 14 and 17 of the International Covenant on Civil and Political Rights.[?].
AUTHOR’S SUBMISSIONS:
2.1 The author was arrested on 13 October 1985, in connection with the murder, on 11 October 1985, of one Clive Beckford. On 13 November 1987, on the second day of the trial before the Kingston Home Circuit Court, he was found guilty of murder and sentenced to death. The Court of Appeal, on 15 November 1988, dismissed his appeal. On 29 October 1992, the Judicial Committee of the Privy Council dismissed his petition for special leave to appeal
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THE COMPLAINT:
3.1 The author submits that he was born on 21 August 1968 and therefore 17 years and seven weeks old at the time of the incident on 11 October 1985. In support, he furnishes an authenticated copy of his birth certificate. He claims that the death sentence was passed against him in violation of article 6, paragraph 5, of the Covenant. [?]
3.7 The author finally submits that he has been held on death row since 13 November 1987 and alleges that his lengthy stay on death row, as well as his possible execution after such delay, is contrary to article 7 of the Covenant. In this context, reference is made inter alia to the judgement of the Privy Council in Earl Pratt and Ivan Morgan v. the Attorney General for Jamaica, delivered on 2 November 1993.
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AUTHOR’S SUBMISSIONS:
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5.2 Counsel refers to several judicial decisions [?] in support of his argument that as the author has been incarcerated on death row since his conviction on 13 November 1987, for almost eight years, he has been subjected to inhuman and degrading treatment or punishment in violation of articles 7 and 10, paragraph 1, of the Covenant. In this connection, counsel quotes from the Privy Council judgement in Pratt and Morgan that a State “must accept the responsibility for ensuring that execution follows as swiftly as practical after sentence, allowing a reasonable time for appeal and consideration of reprieve”.
5.3 Counsel also refers to the Committee’s general comment on article 7, [?] where it is stated that “when the death penalty is applied by the State party ? it must be carried out in such a way as to cause the least possible physical pain and mental suffering”. Counsel submits that any execution that would take place more than five years after conviction would undoubtedly result in pain and suffering and therefore constitute inhuman and degrading treatment.
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POST-ADMISSIBILITY SUBMISSIONS:
STATE PARTY’S OBSERVATIONS:
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8.4 The State party points out that the author’s death sentence has been commuted, and that as a consequence there has been no breach of article 6, paragraph 5. In this context, the State party notes that section 29(1) of the Juveniles Act prohibits the execution of a person who was under eighteen at the time the offence was committed.
AUTHOR’S SUBMISSIONS:
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9.4 Counsel submits that the author was born on 21 August 1968 and therefore seventeen years and seven weeks old at the time of the incident of 11 October 1985. As he was sentenced to death whilst under eighteen at the time when the offence was committed, article 6(5) has been violated. According to counsel, the violation occurred at the time the author was sentenced to death and continued until his sentence was commuted. The commutation may be a remedy for the violation, but does not mean that the violation did not occur.
9.5 In relation to the violation of article 6(5), counsel argues that the author’s prolonged detention on death row amounted to a violation of articles 7 and 10(1) of the Covenant. With reference to the Committee’s jurisprudence, it is submitted that the author having been sentenced to death in violation of article 6(5) of the Covenant is a compelling circumstance, over and above the length of detention on death row, that turns the author’s detention into a violation of articles 7 and 10(1) of the Covenant.
Views:
10.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol.
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10.3 With regard to the author’s death sentence, the Committee notes that the State party has not challenged the authenticity of the birth certificate presented by the author, and has not refuted that the author was under eighteen years of age when the crime for which he was convicted was committed. As a consequence, the imposition of the death sentence upon the author constituted a violation of article 6, paragraph 5, of the Covenant.
10.4 In the circumstances, since the author of this communication was sentenced to death in violation of article 6 (5) of the Covenant, and the imposition of the death sentence upon him was thus void ab initio, his detention on death row constituted a violation of article 7 of the Covenant.
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11. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political rights, is of the view that the facts before it disclose violations of articles 6, paragraph 5, 7, and 14, paragraph 3(d), of the Covenant.
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Individual Opinion:
Individual Opinion by member David Kretzmer (concurring)
[?] As the Covenant strongly suggests that abolition of the death penalty is desirable, the Committee could not accept an interpretation of the Covenant the implication of which was that the Covenant would be violated if a State party refrained from executing a person, but not if it executed him.
This view of the Committee obviously holds only when imposing and carrying out the death sentence are not of themselves a violation of the Covenant. The logic behind the view does not apply when the State party would violate the Covenant by imposing and carrying out the death sentence. In such a case the violation involved in imposing the death penalty is compounded by holding the condemned person on death row, during which time he suffers from the anxiety over his pending execution. This detention on death row may certainly amount to cruel and inhuman punishment, especially when that detention lasts longer than necessary for the domestic legal proceedings required to correct the error involved in imposing the death sentence.
In the present case, as the Committee has held in paragraph 10.4, imposition of the death penalty was inconsistent with the State party’s obligation under article 6, paragraph 5 of the Covenant. The author subsequently spent almost eight years on death row, before his sentence was commuted to life imprisonment following reclassification of his offence as non-capital. In these circumstances the detention of the author on death row amounted to cruel and inhuman punishment, in violation of article 7 of the Covenant.
Comment
Here the Committee found a violation as the victim had been under the age of eighteen when he was convicted so the imposition of the death penalty in his case would have violated Article 6. Therefore, as his sentence was in breach of the Covenant, the time on death row was in breach of Article 7.
Although the Committee has established that the death penalty in the abstract and the death row phenomenon do not violate the Covenant per se, certain means of execution may constitute a violation of Article 7. This case is also discussed in the right to life, Death penalty or capital punishment.
Ng v. Canada
Human Rights Committee
Communication No. 469/1991
Views of 5 November 1993
Keywords: life - inhuman treatment or punishment - death penalty – extradition - execution, methods of
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AUTHOR’S SUBMISSIONS
1. The author of the communication is Charles Chitat Ng, a British subject, born on 24 December 1960 in Hong Kong, and resident of the United States of America, at the time of his submission detained in a penitentiary in Alberta, Canada, and on 26 September 1991 extradited to the United States. He claims to be a victim of a violation of his human rights by Canada because of his extradition. [?].
2.1 The author was arrested, charged and convicted, in 1985, in Calgary, Alberta, following an attempted store theft and shooting of a security guard. In February 1987, the United States formally requested the author’s extradition to stand trial in California on 19 criminal counts, including kidnapping and 12 murders, committed in 1984 and 1985. If convicted, the author could face the death penalty.
2.2 In November 1988, a judge of the Alberta Court of Queen’s Bench ordered the author’s extradition. In February 1989 the author’s habeas corpus application was denied, and on 31 August 1989 the Supreme Court of Canada refused the author leave to appeal.
2.3 Article 6 of the Extradition Treaty between Canada and the United States provides:
“When the offence for which extradition is requested is punishable by death under the laws of the requesting State and the laws of the requested State do not permit such punishment for that offence, extradition may be refused unless the requesting State provides such assurances as the requested State considers sufficient that the death penalty shall not be imposed or, if imposed, shall not be executed.”
Canada abolished the death penalty in 1976, except for certain military offences.
2.4 [?]. In October 1989, the Minister of Justice decided not to seek these assurances.
2.5 The author subsequently filed an application for review of the Minister’s decision with the Federal Court. On 8 June 1990, the issues in the case were referred to the Supreme Court of Canada, which rendered judgement on 26 September 1991. It found that the author’s extradition without assurances as to the imposition of the death penalty did not contravene Canada’s constitutional protection for human rights nor the standards of the international community. The author was extradited on the same day.
THE COMPLAINT:
3. The author claims that the decision to extradite him violates articles 6, 7, 9, 10, 14 and 26 of the Covenant. He submits that the execution of the death sentence by gas asphyxiation, as provided for under California statutes, constitutes cruel and inhuman treatment or punishment per se, and the conditions on death row are cruel, inhuman and degrading. He further alleges that the judicial procedures in California, in as much as they relate specifically to capital punishment, do not meet basic requirements of justice. In this context, the author alleges that in the United States racial bias influences the imposition of the death penalty.
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Views
16.1 In determining whether, in a particular case, the imposition of capital punishment constitutes a violation of article 7, the Committee will have regard to the relevant personal factors regarding the author, the specific conditions of detention on death row, and whether the proposed method of execution is particularly abhorrent. In the instant case, it is contented that execution by gas asphyxiation is contrary to internationally accepted standards of humane treatment, and that it amounts to treatment in violation of article 7 of the Covenant. The Committee begins by noting that whereas article 6, paragraph 2, allows for the imposition of the death penalty under certain limited circumstances, any method of execution provided for by law must be designed in such a way as to avoid conflict with article 7.
16.2 The Committee is aware that, by definition, every execution of a sentence of death may be considered to constitute cruel and inhuman treatment within the meaning of article 7 of the Covenant; on the other hand, article 6, paragraph 2, permits the imposition of capital punishment for the most serious crimes. Nonetheless, the Committee reaffirms, as it did in its General Comment 20 [44] on article 7 of the Covenant (CCPR/C/21/Add.3, paragraph 6) that, when imposing capital punishment, the execution of the sentence “? must be carried out in such a way as to cause the least possible physical and mental suffering”.
16.3 In the present case, the author has provided detailed information 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. The State party had the opportunity to refute these allegations on the facts; it has failed to do so. [?].
16.4 In the instant case and on the basis of the information before it, the Committee concludes that execution by gas asphyxiation, should the death penalty be imposed on the author, would not meet the test of “least possible physical and mental suffering”, and constitutes cruel and inhuman treatment, in violation of article 7 of the Covenant. Accordingly, Canada, which could reasonably foresee that Mr. Ng, if sentenced to death, would be executed in a way that amounts to a violation of article 7, failed to comply with its obligations under the Covenant, by extraditing Mr. Ng without having sought and received assurances that he would not be executed.
16.5 The Committee need not to pronounce itself on the compatibility, with article 7, of methods of execution other than that which is at issue in this case.
17. The Human Rights Committee, acting under article 5, paragraph 4, of the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee reveal a violation by Canada of article 7 of the Covenant.
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Comment
Here the Committee found that execution by cyanide gas constitutes inhuman and degrading treatment within the meaning of Article 7 and therefore extraditing Mr. Ng to the United States without assurances that he would not face this particular means of execution was a breach of the Covenant.