Submitted by: Keith Cox [represented by counsel]
Victim: The author
State party: Canada
Date of communication: 4 January 1993 (initial submission)
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 31 October 1994,
Having concluded its consideration of communication No. 539/1993 submitted to the Human Rights Committee by Keith Cox under the Optional Protocol
to the International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the author of the communication, his counsel and the State party,
Adopts its Views under article 5, paragraph 4, of the Optional Protocol.
1. The author of the communication is Keith Cox, a citizen of the United States of America born in 1952, currently detained at a penitentiary
in Montreal and facing extradition to the United States. He claims to be a victim of violations by Canada of articles 6, 7, 14 and
26 of the International Covenant on Civil and Political Rights. The author had submitted an earlier communication which was declared
inadmissible because of non-exhaustion of domestic remedies on 29 July 1992.
The facts as submitted by the author:
2.1 On 27 February 1991, the author was arrested at Laval, Québec, for theft, a charge to which he pleaded guilty. While in custody,
the judicial authorities received from the United States a request for his extradition, pursuant to the 1976 Extradition Treaty between
Canada and the United States. The author is wanted in the State of Pennsylvania on two charges of first-degree murder, relating to
an incident that took place in Philadelphia in 1988. If convicted, the author could face the death penalty, although the two other
accomplices were tried and sentenced to life terms.
2.2 Pursuant to the extradition request of the United States Government and in accordance with the Extradition Treaty, the Superior
Court of Québec, on 26 July 1991, ordered the author's extradition to the United States of America. Article 6 of the Treaty 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 in the case of certain military offences.
2.3 The power to seek assurances that the death penalty will not be imposed is conferred on the Minister of Justice pursuant to section
25 of the 1985 Extradition Act.
2.4 Concerning the course of the proceedings against the author, it is stated that a habeas corpus application was filed on his behalf on 13 September 1991; he was represented by a legal aid representative. The application was dismissed
by the Superior Court of Québec. The author's representative appealed to the Court of Appeal of Québec on 17 October 1991. On 25
May 1992, he abandoned his appeal, considering that, in the light of the Court's jurisprudence, it was bound to fail.
2.5 Counsel requests the Committee to adopt interim measures of protection because extradition of the author to the United States
would deprive the Committee of its jurisdiction to consider the communication, and the author to properly pursue his communication.
The complaint:
3. The author claims that the order to extradite him violates articles 6, 14 and 26 of the Covenant; he alleges that the way death
penalties are pronounced in the United States generally discriminates against black people. He further alleges a violation of article
7 of the Covenant, in that he, if extradited and sentenced to death, would be exposed to "the death row phenomenon", i.e.
years of detention under harsh conditions, awaiting execution.
Interim measures:
4.1 On 12 January 1993 the Special Rapporteur on New Communications requested the State party, pursuant to rule 86 of the Committee's
rules of procedure, to defer the author's extradition until the Committee had had an opportunity to consider the admissibility of
the issues placed before it.
4.2 At its forty-seventh session the Committee decided to invite both the author and the State party to make further submissions on
admissibility.
The State party's observations:
5.1 The State party, in its submission, dated 26 May 1993, submits that the communication should be declared inadmissible on the grounds
that extradition is beyond the scope of the Covenant, or alternatively that, even if in exceptional circumstances the Committee could
examine questions relating to extradition, the present communication is not substantiated, for purposes of admissibility.
5.2 With regard to domestic remedies, the State party explains that extradition is a two step process under Canadian law. The first
step involves a hearing at which a judge examines whether a factual and legal basis for extradition exists. The judge considers inter alia the proper authentication of materials provided by the requesting State, admissibility and sufficiency of evidence, questions of
identity and whether the conduct for which the extradition is sought constitutes a crime in Canada for which extradition can be granted.
In the case of fugitives wanted for trial, the judge must be satisfied that the evidence is sufficient to warrant putting the fugitive
on trial. The person sought for extradition may submit evidence at the judicial hearing, after which the judge decides whether the
fugitive should be committed to await surrender to the requesting State.
5.3 Judicial review of a warrant of committal to await surrender can be sought by means of an application for a writ of habeas corpus in a provincial court. A decision of the judge on the habeas corpus application can be appealed to the provincial court of appeal and then, with leave, to the Supreme Court of Canada.
5.4 The second step of the extradition process begins following the exhaustion of the appeals in the judicial phase. The Minister
of Justice is charged with the responsibility of deciding whether to surrender the person sought for extradition. The fugitive may
make written submissions to the Minister, and counsel for the fugitive may appear before the Minister to present oral argument. In
coming to a decision on surrender, the Minister considers the case record from the judicial phase, together with any written and
oral submissions from the fugitive, the relevant treaty terms which pertain to the case to be decided and the law on extradition.
While the Minister's decision is discretionary, the discretion is circumscribed by law. The decision is based upon a consideration
of many factors, including Canada's obligations under the applicable treaty of extradition, facts particular to the person and the
nature of the crime for which extradition is sought. In addition, the Minister must consider the terms of the Canadian Charter of Rights and Freedoms and the various instruments, including the Covenant, which outline Canada's international human rights obligations. A fugitive, subject
to an extradition request, cannot be surrendered unless the Minister of Justice orders the fugitive surrendered and, in any case,
not until all available avenues for judicial review of the Minister's decision, if pursued, are completed. For extradition requests
before 1 December 1992, including the author's request, the Minister's decision is reviewable either by way of an application for
a writ of habeas corpus in a provincial court or by way of judicial review in the Federal Court pursuant to section 18 of the Federal Court Act. As with appeals against a warrant of committal, appeals against a review of the warrant of surrender can be pursued, with leave,
up to the Supreme Court of Canada.
5.5 The courts can review the Minister's decision on jurisdictional grounds, i.e. whether the Minister acted fairly, in an administrative
law sense, and for its consistency with the Canadian constitution, in particular, whether the Minister's decision is consistent with
Canada's human rights obligations.
5.6 With regard to the exercise of discretion in seeking assurances before extradition, the State party explains that each extradition
request from the United States, in which the possibility exists that the person sought may face the imposition of the death penalty,
must be considered by the Minister of Justice and decided on its own particular facts. "Canada does not routinely seek assurances
with respect to the non-imposition of the death penalty. The right to seek assurances is held in reserve for use only where exceptional
circumstances exist. This policy ... is in application of article 6 of the Canada-United States Extradition Treaty. The Treaty was
never intended to make the seeking of assurances a routine occurrence. Rather, it was the intention of the parties to the Treaty
that assurances with respect to the death penalty should only be sought in circumstances where the particular facts of the case warrant
a special exercise of the discretion. This policy represents a balancing of the rights of the individual sought for extradition with
the need for the protection of the people of Canada. This policy reflects ... Canada's understanding of and respect for the criminal
justice system of the United States."
5.7 Moreover, the State party refers to a continuing flow of criminal offenders from the United States into Canada and a concern that,
unless such illegal flow is discouraged, Canada could become a safe haven for dangerous offenders from the United States, bearing
in mind that Canada and the United States share a 4,800 kilometre unguarded border. In the last twelve years there has been an increasing
number of extradition requests from the United States. In 1980 there were 29 such requests; by 1992 the number had grown to 88, including
requests involving death penalty cases, which were becoming a new and pressing problem. "A policy of routinely seeking assurances
under article 6 of the Canada-United States Extradition Treaty would encourage even more criminal offenders, especially those guilty
of the most serious crimes, to flee the United States into Canada. Canada does not wish to become a haven for the most wanted and
dangerous criminals from the United States. If the Covenant fetters Canada's discretion not to seek assurances, increasing numbers
of criminals may come to Canada for the purpose of securing immunity from capital punishment."
6.1 As to the specific facts of the instant communication, the State party indicates that Mr. Cox is a black male, 40 years of age,
of sound mind and body, an American citizen with no immigration status in Canada. He is charged in the state of Pennsylvania with
two counts of first degree murder, one count of robbery and one count of criminal conspiracy to commit murder and robbery, going
back to an incident that occurred in Philadelphia, Pennsylvania in 1988, where two teenage boys were killed pursuant to a plan to
commit robbery in connection with illegal drug trafficking. Three men, one of whom is alleged to be Mr. Cox, participated in the
killings. In Pennsylvania, first degree murder is punishable by death or a term of life imprisonment. Lethal injection is the method
of execution mandated by law.
6.2 With regard to the exhaustion of domestic remedies, the State party indicates that Mr. Cox was ordered committed to await extradition
by a judge of the Quebec Superior Court on 26 July 1991. This order was challenged by the author in an application for habeas corpus before the Quebec Superior Court. The application was dismissed on 13 September 1991. Mr. Cox then appealed to the Quebec Court of
Appeal, and, on 18 February 1992, before exhausting domestic remedies in Canada, he submitted a communication to the Committee, which
was registered under No. 486/1992. Since the extradition process had not yet progressed to the second stage, the communication was
ruled inadmissible by the Committee on 26 July 1992.
6.3 On 25 May 1992, Mr. Cox withdrew his appeal to the Quebec Court of Appeal, thus concluding the judicial phase of the extradition
process. The second stage, the ministerial phase, began. He petitioned the Minister of Justice asking that assurances be sought that
the death penalty would not be imposed. In addition to written submissions, counsel for the author appeared before the Minister and
made oral representations. "It was alleged that the judicial system in the state of Pennsylvania was inadequate and discriminatory.
He submitted materials which purported to show that the Pennsylvania system of justice as it related to death penalty cases was characterized
by inadequate legal representation of impoverished accused, a system of assignment of judges which resulted in a 'death penalty court',
selection of jury members which resulted in 'death qualified juries' and an overall problem of racial discrimination. The Minister
of Justice was of the view that the concerns based on alleged racial discrimination were premised largely on the possible intervention
of a specific prosecutor in the state of Pennsylvania who, according to officials in that state, no longer has any connection with
his case. It was alleged that, if returned to face possible imposition of the death penalty, Mr. Cox would be exposed to the 'death
row phenomenon'. The Minister of Justice was of the view that the submissions indicated that the conditions of incarceration in the
state of Pennsylvania met the constitutional standards of the United States and that situations which needed improvement were being
addressed ... it was argued that assurances be sought on the basis that there is a growing international movement for the abolition
of the death penalty... The Minister of Justice, in coming to the decision to order surrender without assurances, concluded that
Mr. Cox had failed to show that his rights would be violated in the state of Pennsylvania in any way particular to him, which could
not be addressed by judicial review in the United States Supreme Court under the Constitution of the United States. That is, the
Minister determined that the matters raised by Mr. Cox could be left to the internal working of the United States system of justice,
a system which sufficiently corresponds to Canadian concepts of justice and fairness to warrant entering into and maintaining the
Canada-United States Extradition Treaty." On 2 January 1993, the Minister, having determined that there existed no exceptional
circumstances pertaining to the author which necessitated the seeking of assurances in his case, ordered him surrendered without
assurances.
6.4 On 4 January 1993, author's counsel sought to reactivate his earlier communication to the Committee. He has indicated to the Government
of Canada that he does not propose to appeal the Minister's decision in the Canadian courts. The State party, however, does not contest
the admissibility of the communication on this issue.
7.1 As to the scope of the Covenant, the State party contends that extradition per se is beyond its scope and refers to the travaux préparatoires, showing that the drafters of the Covenant specifically considered and rejected a proposal to deal with extradition in the Covenant.
"It was argued that the inclusion of a provision on extradition in the Covenant would cause difficulties regarding the relationship
of the Covenant to existing treaties and bilateral agreements." (A/2929, Chapt. VI, para. 72) In the light of the history of
negotiations during the drafting of the Covenant, the State party submits "that a decision to extend the Covenant to extradition
treaties or to individual decisions pursuant thereto, would stretch the principles governing the interpretation of the Covenant,
and of human rights instruments in general, in unreasonable and unacceptable ways. It would be unreasonable because the principles
of interpretation which recognize that human rights instruments are living documents and that human rights evolve over time cannot
be employed in the face of express limits to the application of a given document. The absence of extradition from the articles of
the Covenant when read with the intention of the drafters must be taken as an express limitation."
7.2 As to the author's standing as a "victim" under article 1 of the Optional Protocol, the State party concedes that he
is subject to Canada's jurisdiction during the time he is in Canada in the extradition process. However, the State party submits
"that Cox is not a victim of any violation in Canada of rights set forth in the Covenant ... because the Covenant does not set
forth any rights with respect to extradition. In the alternative, it contends that even if [the] Covenant extends to extradition,
it can only apply to the treatment of the fugitive sought for extradition with respect to the operation of the extradition process
within the State Party to the Protocol. Possible treatment of the fugitive in the requesting State cannot be the subject of a communication
with respect to the State Party to the Protocol (extraditing State), except perhaps for instances where there was evidence before
that extraditing State such that a violation of the Covenant in the requesting State was reasonably foreseeable."
7.3 The State party contends that the evidence submitted by author's counsel to the Committee and to the Minister of Justice in Canada
does not show that it was reasonably foreseeable that the treatment that the author may face in the United States would violate his
rights under the Covenant. The Minister of Justice and the Canadian Courts, to the extent that the author availed himself of the
opportunities for judicial review, considered all the evidence and argument submitted by counsel and concluded that Mr. Cox's extradition
to the United States to face the death penalty would not violate his rights, either under Canadian law or under international instruments,
including the Covenant. Thus, the State party concludes that the communication is inadmissible because the author has failed to substantiate,
for purposes of admissibility, that the author is a victim of any violation in Canada of rights set forth in the Covenant.
Counsel's submissions on admissibility:
8.1 In his submission of 7 April 1993, author's counsel argues that an attempt to further exhaust domestic remedies in Canada would
be futile in the light of the judgment of the Canadian Supreme Court in the cases of Kindler and Ng. "I chose to file the communication
and apply for interim measures prior to discontinuing the appeal. This move was taken because I presumed that a discontinuance in
the appeal might result in the immediate extradition of Mr. Cox It was more prudent to seize the Committee first, and then discontinue
the appeal, and I think this precaution was a wise one, because Mr. Cox is still in Canada... Subsequent to discontinuation of the
appeal, I filed an application before the Minister of Justice, Kim Campbell, praying that she exercise her discretionary power under
article 6 of the Extradition Act, and refuse to extradite Mr. Cox until an assurance had been provided by the United States government
that if Mr. Cox were to be found guilty, the death penalty would not be applied... I was granted a hearing before Minister Campbell,
on November 13, 1992. In reasons dated January 2, 1993 Minister Campbell refused to exercise her discretion and refused to seek assurances
from the United States government that the death penalty not be employed... It is possible to apply for judicial review of the decision
of Minister Campbell, on the narrow grounds of breach of natural justice or other gross irregularity. However, there is no suggestion
of any grounds to justify such recourse, and consequently no such dilatory recourse has been taken ... all useful and effective domestic
remedies to contest the extradition of Mr. Cox have been exhausted."
8.2 Counsel contends that the extradition of Mr. Cox would expose him to the real and present danger of:
"a. arbitrary execution, in violation of article 6 of the Covenant;
b. discriminatory imposition of the death penalty, in violation of articles 6 and 26 of the Covenant;
c. imposition of the death penalty in breach of fundamental procedural safeguards, specifically by an impartial jury (the phenomenon
of 'death qualified' juries), in violation of articles 6 and 14 of the Covenant;
d. prolonged detention on 'death row', in violation of article 7 of the Covenant."
8.3 With respect to the system of criminal justice in the United States, author's counsel refers to the reservations which the United
States formulated upon its ratification of the Covenant, in particular to article 6: "The United States reserves the right,
subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted
under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by
persons below eighteen years of age." Author's counsel argues that this is "an enormously broad reservation that no doubt
is inconsistent with the nature and purpose of the treaty but that furthermore ... creates a presumption that the United States does
not intend to respect article 6 of the Covenant."
9.1 In his comments, dated 10 June 1993, on the State party's submission, counsel addresses the refusal of the Minister to seek assurances
on the non-imposition of the death penalty, and refers to the book La Forest's Extradition to and from Canada, in which it is stated that Canada in fact routinely seeks such an undertaking. Moreover, the author contests the State party's interpretation
that it was not the intention of the drafters of the extradition treaty that assurances be routinely sought. "It is known that
the provision in the extradition treaty with the United States was added at the request of the United States. Does Canada have any
evidence admissible in a court of law to support such a questionable claim? I refuse to accept the suggestion in the absence of any
serious evidence."
9.2 As to the State party's argument that extradition is intended to protect Canadian society, author's counsel challenges the State
party's belief that a policy of routinely seeking guarantees will encourage criminal law offenders to seek refuge in Canada and contends
that there is no evidence to support such a belief. Moreover, with regard to Canada's concern that if the United States does not
give assurances, Canada would be unable to extradite and have to keep the criminal without trial, author's counsel argues that "a
state government so devoted to the death penalty as a supreme punishment for an offender would surely prefer to obtain extradition
and keep the offender in life imprisonment rather than to see the offender freed in Canada. I know of two cases where the guarantee
was sought from the United States, one for extradition from the United Kingdom to the state of Virginia (Soering) and one for extradition
from Canada to the state of Florida (O'Bomsawin). In both cases the states willingly gave the guarantee. It is pure demagogy for
Canada to raise the spectre of 'a haven for many fugitives from the death penalty' in the absence of evidence."
9.3 As to the murders of which Mr. Cox was accused, author's counsel indicates that "two individuals have pleaded guilty to the
crime and are now serving life prison terms in Pennsylvania. Each individual has alleged that the other individual actually committed
the murder, and that Keith Cox participated."
9.4 With regard to the scope of the Covenant, counsel refers to the travaux préparatoires of the Covenant and argues that consideration of the issue of extradition must be placed within the context of the debate on the
right to asylum, and claims that extradition was in fact a minor point in the debates. Moreover, "nowhere in the summary records
is there evidence of a suggestion that the Covenant would not apply to extradition requests when torture or cruel, inhuman and degrading
punishment might be imposed... Germane to the construction of the Covenant, and to Canada's affirmations about the scope of human
rights law, is the more recent Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides,
in article 3, that States parties shall not extradite a person to another State where there are serious grounds to believe that the
person will be subjected to torture... It is respectfully submitted that it is appropriate to construe articles 7 and 10 of the Covenant
in light of the more detailed provisions in the Convention Against Torture. Both instruments were drafted by the same organization,
and are parts of the same international human rights system. The Convention Against Torture was meant to give more detailed and specialized
protection; it is an enrichment of the Covenant."
9.5 As to the concept of victim under the Optional Protocol, author's counsel contends that this is not a matter for admissibility
but for the examination of the merits.
Issues and proceedings before the Committee:
10.1 Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its
rules of procedure, decide whether or not the communication is admissible under the Optional Protocol to the Covenant.
10.2 With regard to the requirement of the exhaustion of domestic remedies, the Committee noted that the author did not complete the
judicial phase of examination, since he withdrew the appeal to the Court of Appeal after being advised that it would have no prospect
of success and, therefore, that legal aid would not be provided for that purpose. With regard to the ministerial phase, the author
indicated that he did not intend to appeal the Minister's decision to surrender Mr. Cox without seeking assurances, since, as he
asserts, further recourse to domestic remedies would have been futile in the light of the 1991 judgment of the Canadian Supreme Court
in Kindler and Ng The Supreme Court found that the decision of the Minister to extradite Mr. Kindler and Mr. Ng without seeking assurances that the
death penalty would not be imposed or, if imposed, would not be carried out, did not violate their rights under the Canadian Charter
of Rights and Freedoms.. The Committee noted that the State party had explicitly stated that it did not wish to express a view as
to whether the author had exhausted domestic remedies and did not contest the admissibility of the communication on this ground.
In the circumstances, basing itself on the information before it, the Committee concluded that the requirements of article 5, paragraph
2(b), of the Covenant had been met.
10.3 Extradition as such is outside the scope of application of the Covenant (communication No. 117/1981 [M.A. v. Italy], paragraph 13.4: "There is no provision of the Covenant making it unlawful for a State party to seek extradition of a person
from another country"). Extradition is an important instrument of cooperation in the administration of justice, which requires
that safe havens should not be provided for those who seek to evade fair trial for criminal offences, or who escape after such fair
trial has occurred. But a State party's obligation in relation to a matter itself outside the scope of the Covenant may still be
engaged by reference to other provisions of the Covenant See the Committee's decisions in communications Nos. 35/1978 (Aumeeruddy-Cziffra et al. v. Mauritius, Views adopted on 9 April 1981) and 291/1988 (Torres v. Finland, Views adopted on 2 April 1990).. In the present case the author does not claim that extradition as such violates the Covenant, but
rather that the particular circumstances related to the effects of his extradition would raise issues under specific provisions of
the Covenant. The Committee finds that the communication is thus not excluded from consideration ratione materiae.
10.4 With regard to the allegations that, if extradited, Mr. Cox would be exposed to a real and present danger of a violation of articles
14 and 26 of the Covenant in the United States, the Committee observed that the evidence submitted did not substantiate, for purposes
of admissibility, that such violations would be a foreseeable and necessary consequence of extradition. It does not suffice to assert
before the Committee that the criminal justice system in the United States is incompatible with the Covenant. In this connection,
the Committee recalled its jurisprudence that, under the Optional Protocol procedure, it cannot examine in abstracto the compatibility with the Covenant of the laws and practice of a State. Views in communication No. 61/1979, Leo Hertzberg et al. v. Finland, para. 9.3. For purposes of admissibility, the author has to substantiate that in the specific circumstances of his case, the Courts
in Pennsylvania would be likely to violate his rights under articles 14 and 26, and that he would not have a genuine opportunity
to challenge such violations in United States courts. The author has failed to do so. This part of the communication is therefore
inadmissible under article 2 of the Optional Protocol.
10.5 The Committee considered that the remaining claim, that Canada violated the Covenant by deciding to extradite Mr. Cox without
seeking assurances that the death penalty would not be imposed, or if imposed, would not be carried out, may raise issues under articles
6 and 7 of the Covenant which should be examined on the merits.
11. On 3 November 1993, the Human Rights Committee decided that the communication was admissible in so far as it may raise issues
under articles 6 and 7 of the Covenant. The Committee reiterated its request to the State party, under rule 86 of the Committee's
rules of procedure, that the author not be extradited while the Committee is examining the merits of the communication.
State party's request for review of admissibility and submission on the merits:
12.1 In its submission under article 4, paragraph 2, of the Optional Protocol, the State party maintains that the communication is
inadmissible and requests the Committee to review its decision of 3 November 1993. The State party also submits its response on the
merits of the communication.
12.2 With regard to the notion of "victim" within the meaning of article 1 of the Optional Protocol, the State Party indicates
that Mr. Keith Cox has not been convicted of any crime in the United States, and that the evidence submitted does not substantiate,
for purposes of admissibility, that violations of articles 6 and 7 of the Covenant would be a foreseeable and necessary consequence
of his extradition.
12.3 The State party explains the extradition process in Canada, with specific reference to the practice in the context of the Canada-United
States Extradition Treaty. It elaborates on the judicial phase, which includes a methodical and thorough evaluation of the facts
of each case. After the exhaustion of the appeals in the judicial phase, a second phase of review follows, in which the Minister
of Justice is charged with the responsibility of deciding whether to surrender the person for extradition, and in capital cases,
whether the facts of the particular case justify seeking assurances that the death penalty will not be imposed. Throughout this process
the fugitive can present his arguments against extradition, and his counsel may appear before the Minister to present oral argument
both on the question of surrender and, where applicable, on the seeking of assurances. The Minister's decision is also subject to
judicial review. In numerous cases, the Supreme Court of Canada has had occasion to review the exercise of the ministerial discretion
on surrender, and has held that the right to life and the right not to be deprived thereof except in accordance with the principles
of fundamental justice, apply to ministerial decisions on extradition.
12.4 With regard to the facts particular to Mr. Keith Cox, the State party reviews his submissions before the Canadian courts, the
Minister of Justice (see paras. 6.2 and 6.3 supra) and before the Committee and concludes that the evidence adduced fails to show how Mr. Cox satisfies the criterion of being a "victim"
within the meaning of article 1 of the Optional Protocol. Firstly, it has not been alleged that the author has already suffered any
violation of his Covenant rights; secondly, it is not reasonably foreseeable that he would become a victim after extradition to the
United States. The State party cites statistics from the Pennsylvania District Attorney's Office and indicates that since 1976, when
Pennsylvania's current death penalty law was enacted, no one has been put to death; moreover, the Pennsylvania legal system allows
for several appeals. But not only has Mr. Cox not been tried, he has not been convicted, nor sentenced to death. In this connection
the State party notes that the two other individuals who were alleged to have committed the crimes together with Mr. Cox were not
given death sentences but are serving life sentences. Moreover, the death penalty is not sought in all murder cases. Even if sought,
it cannot be imposed in the absence of aggravating factors which must outweigh any mitigating factors. Referring to the Committee's
jurisprudence in the Aumeeruddy-Cziffra case that the alleged victim's risk be "more than a theoretical possibility", the State party states that no evidence has
been submitted to the Canadian courts or to the Committee which would indicate a real risk of his becoming a victim. The evidence
submitted by Mr. Cox is either not relevant to him or does not support the view that his rights would be violated in a way that he
could not properly challenge in the courts of Pennsylvania and of the United States. The State party concludes that since Mr. Cox
has failed to substantiate, for purposes of admissibility, his allegations, the communication should be declared inadmissible under
article 2 of the Optional Protocol.
13.1 As to the merits of the case, the State party refers to the Committee's Views in the Kindler and Ng cases, which settled a number of matters concerning the application of the Covenant to extradition cases.
13.2 As to the application of article 6, the State party relies on the Committee's view that paragraph 1 (right to life) must be read
together with paragraph 2(imposition of the death penalty), and that a State party would violate paragraph 6, paragraph 1, if it
extradited a person to face possible imposition of the death penalty in a requesting State where there was a real risk of a violation
of paragraph 6, paragraph 2.
13.3 Whereas Mr. Cox alleges that he would face a real risk of a violation of article 6 of the Covenant because the United States
"does not respect the prohibition on the execution of minors", the State party indicates that Mr. Cox is over 40 years
of age. As to the other requirements of article 6, paragraph 2, of the Covenant, the State party indicates that Mr. Cox is charged
with murder, which is a very serious criminal offence, and that if the death sentence were to be imposed on him, there is no evidence
suggesting that it would not be pursuant to a final judgment rendered by a court.
13.4 As to hypothetical violations of Mr. Cox's rights to a fair trial, the State party recalls that the Committee declared the communication
inadmissible with respect to articles 14 and 26 of the Covenant, since the author had not substantiated his allegations for purposes
of admissibility. Moreover, Mr. Cox has not shown that he would not have a genuine opportunity to challenge such violations in the
courts of the United States.
13.5 As to article 7 of the Covenant, the State party first addresses the method of judicial execution in Pennsylvania, which is by
lethal injection. This method was recently provided for by the Pennsylvania legislature, because it was considered to inflict the
least suffering. The State party further indicates that the Committee, in its decision in the Kindler case, which similarly involved the possible judicial execution by lethal injection in Pennsylvania, found no violation of article
7.
13.6 The State party then addresses the submissions of counsel for Mr. Cox with respect to alleged conditions of detention in Pennsylvania.
It indicates that the material submitted is out of date and refers to recent substantial improvements in the Pennsylvania prisons,
particularly in the conditions of incarceration of inmates under sentence of death. At present these prisoners are housed in new
modern units where cells are larger than cells in other divisions, and inmates are permitted to have radios and televisions in their
cells, and to have access to institutional programs and activities such as counselling, religious services, education programs, and
access to the library.
13.7 With regard to the so-called "death row phenomenon", the State party distinguishes the facts of the Cox case from those
in the Soering v. United Kingdom judgment of the European Court of Justice. The decision in Soering turned not only on the admittedly bad conditions in some prisons in the state of Virginia, but also on the tenuous state of health
of Mr. Soering. Mr. Cox has not been shown to be in a fragile mental or physical state. He is neither a youth, nor elderly. In this
connection, the State party refers to the Committee's jurisprudence in the Vuolanne v. Finland case, where it held that "the assessment of what constitutes inhuman or degrading treatment falling within the meaning of article
7 depends on all the circumstances of the case, such as the duration and manner of the treatment, its physical or mental effects
as well as the sex, age and state of health of the victim." Views in communication No. 265/1987, Vuolanne v. Finland, para. 9.2.
13.8 As to the effects of prolonged detention, the State party refers to the Committee's jurisprudence that the "death row phenomenon"
does not violate article 7, if it consists only of prolonged periods of delay on death row while appellate remedies are pursued.
In the case of Mr. Cox, it is not at all clear that he will reach death row or that he will remain there for a lengthy period of
time pursuing appeals.
Author's comments:
14.1 In his comments on the State party's submission, counsel for Mr. Cox stresses that the state of Pennsylvania has stated in its
extradition application that the death penalty is being sought. Accordingly, the prospect of execution is not so very remote.
14.2 With regard to article 7 of the Covenant, author's counsel contends that the use of plea bargaining in a death penalty case meets
the definition of torture. "What Canada is admitting ... is that Mr. Cox will be offered a term of life imprisonment instead
of the death penalty if he pleads guilty. In other words, if he admits to the crime he will avoid the physical suffering which is inherent in imposition of the death penalty."
14.3 As to the method of execution, author's counsel admits that no submissions had been made on this subject in the original communication.
Nevertheless, he contends that execution by lethal injection would violate article 7 of the Covenant. He argues, on the basis of
a deposition by Professor Michael Radelet of the University of Florida, that there are many examples of "botched" executions
by lethal injection.
14.4 As to the "death row phenomenon", counsel for Mr. Cox specifically requests that the Committee reconsider its case
law and conclude that there is a likely violation of article 7 in Mr. Cox's case, since "nobody has been executed in Pennsylvania
for more than twenty years, and there are individuals awaiting execution on death row for as much as fifteen years."
14.5 Although the Committee declared the communication inadmissible as to articles 14 and 26 of the Covenant, author's counsel contends
that article 6 of the Covenant would be violated if the death penalty were to be imposed "arbitrarily" on Mr. Cox because
he is black. He claims that there is systemic racism in the application of the death penalty in the United States.
Merits:
15. The Committee has taken note of the State party's information and arguments on admissibility, submitted after the Committee's
decision of 3 November 1993. It observes that no new facts or arguments have been submitted that would justify a reversal of the
Committee's decision on admissibility. Therefore, the Committee proceeds to the examination of the merits.
16.1 With regard to a potential violation by Canada of article 6 of the Covenant if it were to extradite Mr. Cox to face the possible
imposition of the death penalty in the United States, the Committee refers to the criteria set forth in its Views on communications
Nos. 470/1991 (Kindler v. Canada) and 469/1991 (Chitat Ng v. Canada). Namely, for States that have abolished capital punishment and are called to extradite a person to a country where that person may
face the imposition of the death penalty, the extraditing State must ensure that the person is not exposed to a real risk of a violation
of his rights under article 6 in the receiving State. In other words, if a State party to the Covenant takes a decision relating
to a person within its jurisdiction, and the necessary and foreseeable consequence is that that person's rights under the Covenant
will be violated in another jurisdiction, the State party itself may be in violation of the Covenant. In this context, the Committee
also recalls its General Comment on Article 6 General Comment No. 6/16 of 27 July 1982, para. 6., which provides that while States parties are not obliged to abolish the death
penalty, they are obliged to limit its use.
16.2 The Committee notes that article 6, paragraph 1, must be read together with article 6, paragraph 2, which does not prohibit the
imposition of the death penalty for the most serious crimes. Canada, while not itself imposing the death penalty on Mr. Cox, is asked
to extradite him to the United States, where he may face capital punishment. If Mr. Cox were to be exposed, through extradition from
Canada, to a real risk of a violation of article 6, paragraph 2, in the United States, that would entail a violation by Canada of
its obligations under article 6, paragraph 1. Among the requirements of article 6, paragraph 2, is that capital punishment be imposed
only for the most serious crimes, in circumstances not contrary to the Covenant and other instruments, and that it be carried out
pursuant to a final judgment rendered by a competent court. The Committee notes that Mr. Cox is to be tried for complicity in two
murders, undoubtedly very serious crimes. He was over 18 years of age when the crimes were committed. The author has not substantiated
his claim before the Canadian courts or before the Committee that trial in the Pennsylvania courts with the possibility of appeal
would not be in accordance with his right to a fair hearing as required by the Covenant.
16.3 Moreover, the Committee observes that the decision to extradite Mr. Cox to the United States followed proceedings in the Canadian
courts at which Mr. Cox's counsel was able to present argument. He was also able to present argument at the ministerial phase of
the proceedings, which themselves were subject to appeal. In the circumstances, the Committee finds that the obligations arising
under article 6, paragraph 1, did not require Canada to refuse the author's extradition without assurances that the death penalty
would not be imposed.
16.4 The Committee notes that Canada itself, save for certain categories of military offences, abolished capital punishment; it is
not, however, a party to the Second Optional Protocol to the Covenant. As to whether the fact that Canada has generally abolished
capital punishment, taken together with its obligations under the Covenant, required it to refuse extradition or to seek the assurances
it was entitled to seek under the extradition treaty, the Committee observes that the domestic abolition of capital punishment does
not release Canada of its obligations under extradition treaties. However, it is in principle to be expected that, when exercising
a permitted discretion under an extradition treaty (namely, whether or not to seek assurances that capital punishment will not be
imposed) a State which has itself abandoned capital punishment would give serious consideration to its own chosen policy in making
its decision. The Committee observes, however, that the State party has indicated that the possibility to seek assurances would normally
be exercised where exceptional circumstances existed. Careful consideration was given to this possibility. The Committee notes the
reasons given by Canada not to seek assurances in Mr. Cox's case, in particular, the absence of exceptional circumstances, the availability
of due process in the state of Pennsylvania, and the importance of not providing a safe haven for those accused of or found guilty
of murder.
16.5 While States parties must be mindful of the possibilities for the protection of life when exercising their discretion in the
application of extradition treaties, the Committee finds that Canada's decision to extradite without assurances was not taken arbitrarily
or summarily. The evidence before the Committee reveals that the Minister of Justice reached a decision after hearing argument in
favor of seeking assurances.
16.6 The Committee notes that the author claims that the plea bargaining procedures, by which capital punishment could be avoided
if he were to plead guilty, further violates his rights under the Covenant. The Committee finds this not to be so in the context
of the criminal justice system in Pennsylvania.
16.7 With regard to the allegations of systemic racial discrimination in the United States criminal justice system, the Committee
does not find, on the basis of the submissions before it, that Mr. Cox would be subject to a violation of his rights by virtue of
his colour.
17.1 The Committee has futher considered whether in the specific circumstances of this case, being held on death row would constitute
a violation of Mr. Cox's rights under article 7 of the Covenant. While confinement on death row is necessarily stressful, no specific
factors relating to Mr. Cox's mental condition have been brought to the attention of the Committee. The Committee notes also that
Canada has submitted specific information about the current state of prisons in Pennsylvania, in particular with regard to the facilities
housing inmates under sentence of death, which would not appear to violate article 7 of the Covenant.
17.2 As to the period of detention on death row in reference to article 7, the Committee notes that Mr. Cox has not yet been convicted
nor sentenced, and that the trial of the two accomplices in the murders of which Mr. Cox is also charged did not end with sentences
of death but rather of life imprisonment. Under the jurisprudence of the Committee Views in communications Nos. 210/1986 and 225/1987, Earl Pratt and Ivan Morgan v. Jamaica, para. 13.6; No. 250/1987, Carlton Reid v. Jamaica, para. 11.6; Nos. 270/1988 and 271/1988, Randolph Barrett and Clyde Sutcliffe v. Jamaica, para. 8.4; No. 274/1988, Loxley Griffith v. Jamaica, para. 7.4; No. 317/1988, Howard Martin v. Jamaica, para. 12.1; No. 470/1991, Kindler v. Canada, para. 15.2., on the one hand, every person confined to death row must be afforded the opportunity to pursue all possibilities of
appeal, and, on the other hand, the State party must ensure that the possibilities for appeal are made available to the condemned
prisoner within a reasonable time. Canada has submitted specific information showing that persons under sentence of death in the
state of Pennsylvania are given every opportunity to avail themselves of several appeal instances, as well as opportunities to seek
pardon or clemency. The author has not adduced evidence to show that these procedures are not made available within a reasonable
time, or that there are unreasonable delays which would be imputable to the State. In these circumstances, the Committee finds that
the extradition of Mr. Cox to the United States would not entail a violation of article 7 of the Covenant.
17.3 With regard to the method of execution, the Committee has already had the opportunity of examining the Kindler case, in which
the potential judicial execution by lethal injection was not found to be in violation of article 7 of the Covenant.
18. The Committee, acting under article 5, paragraph 4, of the Optional Protocol, finds that the facts before it do not sustain a
finding that the extradition of Mr. Cox to face trial for a capital offence in the United States would constitute a violation by
Canada of any provision of the International Covenant on Civil and Political Rights.
__________
*/ The texts of 8 individual opinions, signed by 13 Committee members, are appended to the present document.
[Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued also in Arabic, Chinese
and Russian as part of the Committee's annual report to the General Assembly.]
APPENDICES
A. INDIVIDUAL OPINIONS APPENDED TO THE
COMMITTEE'S DECISION ON ADMISSIBILITY OF 3 NOVEMBER 1993
1. Individual opinion by Mrs. Rosalyn Higgins, co-signed by Messrs. Laurel Francis, Kurt Herndl, Andreas Mavrommatis, Birame Ndiaye and
Waleed Sadi (dissenting)
We believe that this case should have been declared inadmissible. Although extradition as such is outside the scope of the Covenant
(see M.A. v. Italy, communication No. 117/1981, decision of 10 April 1984, paragraph 13.4), the Committee has explained, in its decision on communication
No. 470/1991 (Joseph J. Kindler v. Canada, Views adopted on 30 July 1993), that a State party's obligations in relation to a matter itself outside the scope of the Covenant
may still be engaged by reference to other provisions of the Covenant.
But here, as elsewhere, the admissibility requirements under the Optional Protocol must be met. In its decision on Kindler, the Committee addressed the issue of whether it had jurisdiction, ratione loci, by reference to article 2 of the Optional Protocol, in an extradition case that brought into play other provisions of the Covenant.
It observed that "if a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable
consequence 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" (paragraph 6.2).
We do not see on what jurisdictional basis the Committee proceeds to its finding that the communication is admissible under articles
6 and 7 of the Covenant. The Committee finds that the communication is inadmissible by reference to article 2 of the Optional Protocol
(paragraph 10.4) insofar as claims relating to fair trial (article 14) and discrimination before the law (article 26) are concerned.
We agree. But this negative finding cannot form a basis for admissibility in respect of articles 6 and 7. The Committee should have
applied the same test ("foreseeable and necessary consequences") to the claims made under articles 6 and 7, before simply
declaring them admissible in respect of those articles. It did not do so - and in our opinion could not have found, in the particular
circumstances of the case, a proper legal basis for jurisdiction had it done so.
The above test is relevant also to the admissibility requirement, under article 1 of the Optional Protocol, that an author be a "victim"
of a violation in respect of which he brings a claim. In other words, it is not always necessary that a violation already have occurred
for an action to come within the scope of article 1. But the violation that will affect him personally must be a "necessary
and foreseeable consequence" of the action of the defendant State.
It is clear that in the case of Mr. Cox, unlike in the case of Mr. Kindler, this test is not met. Mr. Kindler had, at the time of
the Canadian decision to extradite him, been tried in the United States for murder, found guilty as charged and recommended to the
death sentence by the jury. Mr. Cox, by contrast, has not yet been tried and a fortiori has not been found guilty or recommended to the death penalty. Already it is clear that his extradition would not entail the possibility of a "necessary and foreseeable consequence of a violation of his rights" that would require examination
on the merits. This failure to meet the test of "prospective victim" within the meaning of article 1 of the Optional Protocol
is emphasized by the fact that Mr. Cox's two co-defendants in the case in which he has been charged have already been tried in the
State of Pennsylvania, and sentenced not to death but to a term of life imprisonment.
The fact that the Committee - and rightly so in our view - found that Kindler raised issues that needed to be considered on their merits, and that the admissibility criteria were there met, does not mean that
every extradition case of this nature is necessarily admissible. In every case, the tests relevant to articles 1, 2, 3 and 5, paragraph
2, of the Optional Protocol must be applied to the particular facts of the case.
The Committee has not at all addressed the requirements of article 1 of the Optional Protocol, that is, whether Mr. Cox may be considered
a "victim" by reference to his claims under articles 14, 26, 6 or 7 of the Covenant.
We therefore believe that Mr. Cox was not a "victim" within the meaning of article 1 of the Optional Protocol, and that
his communication to the Human Rights Committee is inadmissible.
The duty to address carefully the requirements for admissibility under the Optional Protocol is not made the less necessary because
capital punishment is somehow involved in a complaint.
For all these reasons, we believe that the Committee should have found the present communication inadmissible.
Rosalyn Higgins
Laurel Francis
Kurt Herndl
Andreas Mavrommatis
Birame Ndiaye
Waleed Sadi
