The Covenant on Civil and Political Rights - Trends and Developments Specialization Seminar in Human Rights Prof. Martin Scheinin Åbo Akademi University/TLS Fall 2006

Course Introduction Sessions: lecture/seminar Reading materials Papers by participants Professors Participants

1. Death Penalty; Non-refoulement; Interim Measures of Protection A very large part (35-40%) of all HRC case law is about capital punishment, directly or indirectly Jamaica, Trinidad and Tobago, other Caribbean countries Belarus, Tajikistan, Uzbekistan, the Philippines Extradition/deportation cases against Australia or Canada Human rights treaties do not outlaw capital punishment Abolitionist (programmatic) dimension of art. 6, paras 2 and 6art. 6 Restrictive dimension of art. 6, paras 2, 4, 5 Permissive dimension (e contrario) Is capital punishment “allowed” or is it just not per se a violation of the right to life? If corporal punishment is a violation of art. 7 (George Osbourne v. Jamaica), why is not every execution of a sentence of death? Pocar and Aguilar Urbina in Ng v. CanadaNg v. Canada Second Optional Protocol: abolition of capital punishmentSecond Optional Protocol

Restrictions to the application of capital punishment “only for the most serious crimes” (art. 6.2) Basis for piecemeal work towards abolition Bernard Lubuto v. Zambia “not contrary to the present Covenant” (art. 6.2) Article 14 and its strict interpretation, e.g. requirement of being effectively represented at all stages of the proceedings and the right of appeal. A violation of fair trial entails a violation of article 6 and the remedy must include commutation. Effect of articles 7 and 10 is somewhat ambiguous (Pratt and Morgan v. Jamaica; McLeod v. Jamaica, McTaggart v. Jamaica) Persons under 18 and pregnant women (art. 6.5) Mandatory capital punishment as arbitrary deprivation of life (art. 6.1) Eversley Thompson v. St. Vincent and the Grenadines Reintroduction of capital punishment (art. 6.2, 6.6) ?

Restrictions… (continued) Capital punishment as inhuman treatment Death row phenomenon European Court of Human Rights: Soering v. UK: stay on death row constitutes inhuman treatment Judicial Committee of the Privy Council in Pratt and Morgan v. Jamaica: unconstitutional to keep a person on death row beyond five years after conviction HRC’s position of “further compelling circumstances” taken in Pratt and Morgan v. Jamaica, explained in Erroll Johnson v. Jamaica, maintained even in cases of extremely long delay, Bickaroo and LaVende v. Trinidad and Tobago Method of execution Ng v. Canada: suffering of 10 minutes turns execution into inhuman treatment. Individual opinions: trivializes the issue.Ng v. Canada Extradition/expulsion to face capital punishment?

Non-refoulement under the ICCPR The “Canadian Trilogy”:Kindler (1993), Ng (1993), Cox (1994) The test was not whether the receiving country retains capital punishment but whether the author's extradition would expose him to a violation of article 6. G.T. v. Australia (1997) para. 8.4 The test was moving towards a real risk of being sentenced to death, at least when the sending country is a party to the Second Opt. Prot. C. v. Australia (2002) Violation of art. 7, partly reflecting a position that removal may be an inhuman act on its own, not only because of treatment awaiting in the receiving country. Compare to ECtHR judgment in D. v. UK. Judge v. Canada (2003)Judge v. Canada Deportation to face capital punishment constitutes, as such, a violation of article 6 if the country itself has abolished the death penalty. Implies that also reintroduction of the death penalty is contrary to article 6.

Refoulement under the risk of torture Ahani v. Canada (Comm. 1051/2002)Ahani v. Canada Domestic law background: in Suresh v. Canada the Supreme Court of Canada introduced a ”balancing test”; on the same day it found Ahani was not under a risk of torture As the ECtHR in Chahal v. UK, the HRC held that the crimes or acts of the individual are not material in respect of non-refoulement Violation of article 13 in conjunction with article 7, due to inadequate procedural safeguards in relation to an alleged risk of torture

Reintroduction of capital punishment Rolando v. the Philippines (1110/2002)Rolando v. the Philippines Was decided as a violation of article 6 (1), due to the mandatory nature of capital punishment Discussion on whether Philippines also was in breach of article 6 (2) as having reintroduced capital punishment after first abolishing it Legal issue (see, Judge v. Canada) Factual issue

Interim measures of protection Rule 92 of the Committee’s Rules of Procedure Degree of compliance is high (e.g., Jamaica) Dante Piandiong et al. v. the Philippines (2000)Dante Piandiong et al. v. the Philippines “Grave breach” of the Optional Protocol Is execution a special case? See para Weiss v. Austria (2003) and Ahani v. Canada (2004) Compare to Eur. Court of HR in Cruz Varas v. Sweden (1991); Mamatkulov and Askarov v. Turkey (Grand Chamber judgment 2005) Other instances of Rule 92 requests Deportation/expulsion – not solely in art. 6/7 cases Permanent environmental harm to indigenous groups

Other aspects of the right to life Lantsov v. Russia: positive obligations to protect the life of detained personsLantsov v. Russia Rodger Chongwe v. Zambia: attempt by the police to kill as a violation of article 6 (para. 5.2) Celis Laureano v. Peru: disappearances (paras 8.3 and 8.4)