A
UNITED
NATIONS
General Assembly
Distr.
GENERAL
A/48/40 (Part II)
1 November 1993
ORIGINAL: ENGLISH
Forty-eighth session
REPORT OF THE HUMAN RIGHTS COMMITTEE*
* The present document is a mimeographed version of part of the report of the Human Rights Committee. The full report will be issued subsequently as Official Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/40).
93-61042 (E) 161293 /...
CONTENTS
Page
Annexes
XII. VIEWS OF THE HUMAN RIGHTS COMMITTEE UNDER ARTICLE 5, PARAGRAPH 4,
OF THE OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL
AND POLITICAL RIGHTS ............................................. 5
A. Communication No. 237/1987, Denroy Gordon v. Jamaica
(views adopted on 5 November 1992, forty-sixth session) .......... 5
B. Communication No. 255/1987, Carlton Linton v. Jamaica
(views adopted on 22 October 1992, forty-sixth session) .......... 12
C. Communication No. 263/1987, M. González del Río v. Peru
(views adopted on 28 October 1992, forty-sixth session) .......... 17
D. Communication No. 274/1988, Loxley Griffiths v. Jamaica
(views adopted on 24 March 1993, forty-seventh session) .......... 22
E. Communication No. 282/1988, Leaford Smith v. Jamaica
(views adopted on 31 March 1993, forty-seventh session) .......... 28
F. Communication No. 292/1988, Delroy Quelch v. Jamaica
(views adopted on 23 October 1992, forty-sixth session) .......... 37
G. Communication No. 307/1988, John Campbell v. Jamaica
(views adopted on 24 March 1993, forty-seventh session) .......... 41
Appendix ......................................................... 46
H. Communication No. 309/1988, Carlos Orihuela Valenzuela v. Peru
(views adopted on 14 July 1993, forty-eighth session) ............ 48
I. Communication No. 314/1988, Peter Chiiko Bwalya v. Zambia
(views adopted on 14 July 1993, forty-eighth session) ............ 52
J. Communication No. 317/1988, Howard Martin v. Jamaica
(views adopted on 24 March 1993, forty-seventh session) .......... 57
K. Communication No. 320/1988, Victor Francis v. Jamaica
(views adopted on 24 March 1993, forty-seventh session) .......... 62
L. Communication No. 326/1988, Henry Kalenga v. Zambia
(views adopted on 27 July 1993, forty-eighth session) ........... 68
M. Communication No. 334/1988, Michael Bailey v. Jamaica
(views adopted on 31 March 1993, forty-seventh session) .......... 72
N. Communication No. 338/1988, Leroy Simmonds v. Jamaica
(views adopted on 23 October 1992, forty-sixth session) .......... 78
Appendix ......................................................... 84
CONTENTS
Page
O. Communication No. 356/1989, Trevor Collins v. Jamaica
(views adopted on 25 March 1993, forty-seventh session) .......... 85
P. Communications Nos. 359/1989 and 385/1989, John Ballantyne and
Elizabeth Davidson, and Gordon McIntyre v. Canada
(views adopted on 31 March 1993, forty-seventh session) .......... 91
Appendix ......................................................... 104
Q. Communication No. 362/1989, Balkissoon Soogrim v. Trinidad and
Tobago
(views adopted on 8 April 1993, forty-seventh session) ........... 110
R. Communication No. 387/1989, Arvo O. Karttunen v. Finland
(views adopted on 23 October 1992, forty-sixth session) .......... 116
Appendix ......................................................... 122
S. Communication No. 402/1990, Henricus Antonius G. M. Brinkhof v.
the Netherlands
(views adopted on 27 July 1993, forty-eighth session) ............ 124
T. Communications Nos. 406/1990 and 426/1990, Lahcen B. M. Oulajin
and Mohamed Kaiss v. the Netherlands
(views adopted on 23 October 1992, forty-sixth session) .......... 131
Appendix ......................................................... 137
U. Communication No. 470/1991, Joseph Kindler v. Canada
(views adopted on 30 July 1993, forty-eighth session) ............ 138
Appendix ......................................................... 154
XIII. DECISIONS OF THE HUMAN RIGHTS COMMITTEE DECLARING COMMUNICATIONS
INADMISSIBLE UNDER THE OPTIONAL PROTOCOL TO THE INTERNATIONAL
COVENANT ON CIVIL AND POLITICAL RIGHTS ........................... 178
A. Communication No. 337/1988, E. E. v. Jamaica
(decision of 23 October 1992, adopted at the forty-sixth session) 178
B. Communication No. 370/1989, G. H. v. Jamaica
(decision of 23 October 1992, adopted at the forty-sixth session) 181
C. Communication No. 380/1989, R. L. M. v. Trinidad and Tobago
(decision of 16 July 1993, adopted at the forty-eighth session) .. 184
D. Communication No. 404/1990, N. P. v. Jamaica
(decision of 5 April 1993, adopted at the forty-seventh session) . 187
E. Communication No. 420/1990, G. T. v. Canada
(decision of 23 October 1992, adopted at the forty-sixth session) 190
CONTENTS
Page
F. Communication No. 427/1990, H. H. v. Austria
(decision of 22 October 1992, adopted at the forty-sixth session) 195
G. Communication No. 429/1990, E. W. et al. v. the Netherlands
(decision of 8 April 1993, adopted at the forty-seventh session) . 198
H. Communication No. 432/1990, W. B. E. v. the Netherlands
(decision of 23 October 1992, adopted at the forty-sixth session) 205
I. Communication No. 450/1991, I. P. v. Finland
(decision of 26 July 1993, adopted at the forty-eighth session) .. 210
J. Communication No. 467/1991, V. E. M. v. Spain
(decision of 16 July 1993, adopted at the forty-eighth session) .. 214
K. Communication No. 478/1991, A. P. L.-v. d. M. v. the Netherlands
(decision of 26 July 1993, adopted at the forty-eighth session) .. 217
L. Communication No. 485/1991, V. B. v. Trinidad and Tobago
(decision of 26 July 1993, adopted at the forty-eighth session) .. 222
M. Communication No. 490/1992, A. S. and L. S. v. Australia
(decision of 30 March 1993, adopted at the forty-seventh session) 227
N. Communication No. 496/1992, T. P. v. Hungary
(decision of 30 March 1993, adopted at the forty-seventh session) 230
O. Communication No. 499/1992, K. L. B.-W. v. Australia
(decision of 30 March 1993, adopted at the forty-seventh session) 234
P. Communication No. 501/1992, J. H. W. v. the Netherlands
(decision of 16 July 1993, adopted at the forty-eighth session) .. 237
Annex XII
VIEWS OF THE HUMAN RIGHTS COMMITTEE UNDER ARTICLE 5, PARAGRAPH 4,
OF THE OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL
AND POLITICAL RIGHTS
A. Communication No. 237/1987, Denroy Gordon v. Jamaica
(views adopted on 5 November 1992, forty-sixth session)
Submitted by: Denroy Gordon (represented by counsel)
Alleged victim: The author
State party: Jamaica
Date of communication: 29 May 1987
Date of decision on admissibility: 24 July 1989
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 5 November 1992,
Having concluded its consideration of communication No. 237/1987, submitted to the Human Rights Committee by Mr. Denroy Gordon 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, dated 29 May 1987, is Denroy Gordon, a Jamaican citizen, born in 1961, formerly a police officer. At the time of submission the author was awaiting execution of a death sentence. Following the commutation of sentence in 1991, the author has been serving a sentence of life imprisonment at Gun Court Rehabilitation Centre, Jamaica. He claims to be the victim of a violation by Jamaica of article 14, paragraphs 1 and 3 (b), (d) and (e) of the International Covenant on Civil and Political Rights. He is represented by counsel.
Facts as submitted
2.1 The author was arrested on 3 October 1981 on suspicion of having murdered, on the same day, Ernest Millwood. In January 1983, he was put on trial before the Manchester Circuit Court. As the jury failed to arrive at a unanimous verdict - 11 jurors were in favour of acquittal, only one supported a "guilty" verdict - the presiding judge ordered a retrial. In May 1983, at the conclusion of the retrial before the same court, the author was convicted of murder and sentenced to death. The Court of Appeal of Jamaica dismissed his appeal on 22 November 1985 and issued a written judgment in the case on 16 January 1986. A petition for special leave to appeal to the Judicial Committee of the Privy Council was dismissed on 25 January 1988. On 19 February 1991, the Governor-General of Jamaica commuted the author's death sentence to life imprisonment.
2.2 The prosecution's case was that for some time there had been friction between the author and the wife of the deceased, who was employed as a cleaner at Kendal Police Station in the Manchester District to which the author was attached as a young police constable. On the day of the crime, he was on duty and therefore armed with his service revolver. He went up to Mr. Millwood who was cutting grass with a machete, nearby the police station. An argument developed between them, following which the author set out to arrest Mr. Millwood for using indecent language. The latter ran away and the author followed him trying to effect the arrest. In the course of the chase the author shot in the air, but Mr. Millwood did not stop. Subsequently the author caught up with Mr. Millwood, who allegedly chopped at him with the machete. The author, in what he claims was lawful self-defence, fired a shot aimed at the left shoulder of the man, so as to disarm him. The shot, however, proved to be fatal. Immediately thereafter Corporal Afflick arrived on the scene. The author gave him his service revolver and Mr. Millwood's machete, explaining that he had pursued Mr. Millwood and warned him to drop the machete and that he shot Mr. Millwood when he resisted. The author returned to the police station and was formally arrested several hours later, after a preliminary investigation had been conducted.
Complaint
3.1 The author claims to be innocent and maintains that he was denied a fair trial by an independent and impartial tribunal, in violation of article 14, paragraph 1, of the Covenant. Firstly, he alleges that the members of the jury at the retrial were biased against him. He indicates that most of them were chosen from areas close to the community where the crime had occurred and surmises that, for that reason, they had already formed their opinion in the case, in particular on hearsay, before the start of the trial. Moreover, the jurors were allegedly sympathetic to the deceased and his relatives and, as a result, did not base their verdict on the facts of the case. In this connection, the author claims that, in spite of numerous requests for a change of venue on the ground that the jurors had displayed bias against the author, the Court refused to change the venue.
3.2 Furthermore, it is claimed that the judge abused his discretion in ruling inadmissible the author's statement to Corporal Afflick immediately after the shooting. The author contends that the statement was admissible as part of the res gestae and that it confirmed that his trial defence was not a later concoction.
3.3 As to the issue of self-defence the author submits that the judge should have directed the jury that the prosecution had to prove that the violence used was unlawful and that if the accused honestly believed that the circumstances warranted the use of force, he should be acquitted of murder, since the intent to act unlawfully would be negated by his belief, however mistaken or unreasonable. This the trial judge did not do.
3.4 The author further claims that the trial judge misdirected the jury by withdrawing from it the issue of manslaughter. According to the author, although the case was based on self-defence, the jury, if properly directed, could have arrived at a verdict of manslaughter on the basis of the evidence of some of the Crown's witnesses. The judge, however, in his summation, instructed the jury as follows: "I tell you this as a matter of law that provocation does not apply in this case. I tell you this as a matter of law again that manslaughter does not arise in this case ... It is my responsibility to decide what verdicts I leave to you, and I take the responsibility of telling you that there are only two verdicts open to you on the evidence: 1. guilty of murder; 2. not guilty of murder, ...". According to Jamaican law a murder conviction carries a mandatory death sentence.
3.5 In the author's opinion article 14, paragraph 3 (b), of the Covenant was also violated in his case. While acknowledging that he was assisted by a lawyer in the preparation of his defence and during the trial, he alleges that he was not given sufficient time to consult with his lawyer prior to and during the trial. In this context, the lawyer is further said to have failed to employ the requisite emphasis in requesting a change of venue.
3.6 The author further alleges a violation of article 14, paragraph 3 (d), of the Covenant, since he was not present during the hearing of his appeal before the Jamaican Court of Appeal. In this connection, he claims that the issue of self-defence on which the case was factually based, was not adequately dealt with. Moreover, the Court of Appeal allegedly erred in not admitting into evidence a statement made by police Corporal Afflick.
3.7 Finally, the author submits that he has been a victim of a violation of article 14, paragraph 3 (e), of the Covenant in that no witnesses allegedly testified on his behalf, although, he claims, one would have been readily available. He indicates that the witnesses against him were cross-examined and that his lawyer sought, on several occasions, to test the credibility of the Crown's witnesses; in particular, since his trial was actually a retrial, the lawyer sought to point out contradictions in what the witnesses had testified during the preliminary inquiry, during the first trial and the retrial. The trial judge, however, allegedly intervened and instructed the lawyer to confine his questions to the retrial only.
3.8 In respect of the requirement of exhaustion of domestic remedies, the author argues that he should be deemed to have complied with this requirement, since his petition for special leave to appeal to the Judicial Committee of the Privy Council was dismissed on 25 January 1988. Moreover, he submits that, taking into account the length of time between the hearings in his case and the span of time actually spent on death row, the application of domestic remedies has been "unreasonably prolonged" within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.
3.9 The author is aware of the possibility of filing a constitutional motion under Sections 20 and 25 of the Jamaican Constitution, but contends that such a motion is not an effective remedy available to him, within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. He argues that because of his lack of financial means to retain counsel and the unavailability of legal aid for purposes of filing a constitutional motion before the Supreme (Constitutional) Court of Jamaica, he is effectively barred from exercising his constitutional rights.
State party's observations
4.1 The State party contends that the fact that the author's petition for special leave to appeal to the Judicial Committee of the Privy Council was dismissed does not necessarily imply that all available domestic remedies have been exhausted. It argues that the communication remains inadmissible because of the author's failure to seek redress under Sections 20 and 25 of the Jamaican Constitution for the alleged violation of his right to a fair trial.
4.2 In addressing the author's contention that the application of domestic remedies has been "unreasonably prolonged" within the meaning of article 5, paragraph 2 (b), of the Optional Protocol, the State party submits that the delays encountered are partly attributable to the author himself.
4.3 With respect to the substance of the author's allegation that he did not receive a fair trial, the State party submits that the facts as presented by the author seek to raise issues of facts and evidence, which the Committee does not have the competence to evaluate. The State party refers to the Committee's decision in communication No. 369/1989, in which it had been held that "while article 14 of the Covenant guarantees the right to a fair trial, it is for the appellate courts of the States parties to the Covenant to evaluate facts and evidence in a particular case". a/
Decision on admissibility and review thereof
5.1 On the basis of the information before it, the Human Rights Committee concluded that the conditions for declaring the communication admissible had been met, including the requirement of exhaustion of domestic remedies. Accordingly, on 24 July 1989, the Human Rights Committee declared the communication admissible.
5.2 The Committee has noted the State party's submissions of 10 January and 4 September 1990, made after the decision on admissibility, in which it reaffirms its position that the communication is inadmissible on the ground of non-exhaustion of domestic remedies.
5.3 On 24 July 1991, the Committee adopted an interlocutory decision requesting the State party to furnish detailed information on the availability of legal aid or free legal representation for the purpose of constitutional motions, as well as examples of such cases in which legal aid may have been granted or free legal representation may have been procured by the applicant. The State party was further requested to submit to the Committee written explanations or statements relating to the substance of the author's allegations.
5.4 On 14 January 1992, the State party reiterates its position that the communication is inadmissible for non-exhaustion of domestic remedies and requests the Committee to revise its decision on admissibility. It submits that there is no provision for legal aid or free legal representation in constitutional motions. With regard to the Committee's decision that the communication is admissible in so far as it may raise issues under article 14 of the Covenant, the State party demurs that article 14 has seven paragraphs and that it is not clear to what particular paragraph the finding of admissibility relates. "The Committee should indicate the specific provisions of article 14 or indeed of any of the articles to which its findings of admissibility relate, and in relation to which, therefore, Government is being asked to reply; additionally, the Committee must indicate the allegation made by the applicant which has given rise to the finding of admissibility in relation to a particular paragraph of article 14 or any other article. Failure by the Committee to provide this indication will leave the Government in the dark as to the precise allegation and breach to which it must respond in commenting on the merits. For it could not be the case that the Committee expects a reply on each and every allegation made by the applicant, since some of these are patently unmeritorious."
5.5 With regard to the State party's objection that the Committee's decision on admissibility was too broad, the Committee notes that the author's allegations were sufficiently precise and substantiated so as to allow the State party to address them. As to the merits of the author's allegations, it is for the Committee to consider them after declaring the communication admissible, in light of all the information provided by both parties.
5.6 With regard to the State party's arguments on admissibility, especially in respect of the availability of constitutional remedies which the author may still pursue, the Committee recalls that the Supreme Court of Jamaica has, in recent cases, allowed applications for constitutional redress in respect of breaches of fundamental rights, after the criminal appeals in these cases had been dismissed.
5.7 However, the Committee notes that by submission of 14 January 1992, the State party indicated that legal aid is not provided for constitutional motions; it also recalls that the State party has argued, by submission of 10 October 1991 concerning another case b/ that it has no obligation under the Covenant to make legal aid available in respect of such motions, as they do not involve the determination of a criminal charge, as required under article 14, paragraph 3 (d), of the Covenant. In the view of the Committee, this supports the finding, made in the decision on admissibility, that a constitutional motion is not an available remedy for an author who has no means of his own to pursue it. In this context, the Committee observes that the author does not claim that he is absolved from pursuing constitutional remedies because of his indigence; rather it is the State party's unwillingness or inability to provide legal aid for the purpose that renders the remedy one that need not be pursued for purposes of the Optional Protocol.
5.8 The Committee further notes that the author was arrested in 1981, tried and convicted in 1983, and that his appeal was dismissed in 1985. The Committee deems that for purposes of article 5, paragraph 2 (b), of the Optional Protocol, the pursuit of constitutional remedies would, in the circumstances of the case, entail an unreasonable prolongation of the application of domestic remedies. Accordingly, there is no reason to revise the decision on admissibility of 24 July 1989.
Examination of the merits
6.1 In so far as the author's claims under article 14 are concerned, the Committee notes that the State party has not addressed these allegations. Article 4, paragraph 2, of the Optional Protocol enjoins a State party to investigate in good faith all the allegations of violations of the Covenant made against it and its judicial authorities, and to make available to the Committee all the information at its disposal. The summary dismissal of the author's allegations, in general terms, does not meet the requirements of article 4, paragraph 2. In the circumstances, due weight must be given to the author's allegations, to the extent that they have been substantiated.
6.2 In respect of the author's claim of a violation of article 14, paragraph 3 (b) and (d), the Committee notes that the right of an accused person to have adequate time and facilities for the preparation of his defence is an important element of the guarantee of a fair trial and a corollary of the principle of equality of arms. The determination of what constitutes "adequate time" depends on an assessment of the particular circumstances of each case. On the basis of the material before it, however, the Committee cannot conclude that the author's two lawyers were unable to properly prepare the case for the defence, nor that they displayed lack of professional judgment or negligence in the conduct of the defence. The author also claims that he was not present at the hearing of his appeal before the Court of Appeal. However, the written judgment of the Court of Appeal reveals that the author was indeed represented before the Court by three lawyers, and there is no evidence that author's counsel acted negligently in the conduct of the appeal. The Committee therefore finds no violation of article 14, paragraph 3 (b) and (d).
6.3 As to the author's allegation that he was unable to have witnesses testify on his behalf, although one, Corporal Afflick, would have been readily available, it is to be noted that the Court of Appeal, as is shown in its written judgment, considered that the trial judge rightly refused to admit Corporal Afflick's evidence, since it was not part of the res gestae. The Committee observes that article 14, paragraph 3 (e), does not provide an unlimited right to obtain the attendance of any witness requested by the accused or his counsel. It is not apparent from the information before the Committee that the court's refusal to hear Corporal Afflick was such as to infringe the equality of arms between the prosecution and the defence. In the circumstances, the Committee is unable to conclude that article 14, paragraph 3 (e), has been violated.
6.4 There remains one final issue to be determined by the Committee: whether the directions to the jury by the trial judge were arbitrary or manifestly unfair, in violation of article 14, paragraph 1, of the Covenant. The Committee recalls that the judge denied the jury the possibility to arrive at a verdict of manslaughter, by instructing it that the issue of provocation did not arise in the case, thereby only leaving open the verdicts of "guilty of murder" or "not guilty of murder". It further observes that it is in general for the courts of States parties to the Covenant to evaluate facts and evidence in a given case, and for the appellate courts to review the evaluation of such evidence by the lower courts as well as the instructions by the jury. It is not in principle for the Committee to review the evidence and the judge's instructions, unless it is clear that the instructions were manifestly arbitrary or amounted to a denial of justice, or that the judge otherwise violated his obligation of impartiality.
6.5 The Committee has carefully examined whether the judge acted arbitrarily by withdrawing the possibility of a manslaughter verdict from the jury. It observes that this matter was put before, and dismissed by, the Court of Appeal of Jamaica. The Court of Appeal, it is true, did not examine the question of whether a verdict of manslaughter should, as a matter of Jamaican law, have been left open to the jury. The Committee considers, however, that it would have been incumbent upon author's counsel to raise this matter on appeal. In the circumstances, the Committee makes no finding of a violation of article 14, paragraph 1, of the Covenant.
7. 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 the Committee disclose no violation of any of the articles of the Covenant.
[Done in English, French, Russian and Spanish, the English text being the original version.]
Notes
a/ Decision of 8 November 1989 (G. S. v. Jamaica), para. 3.2.
b/ Communication No. 283/1988 (Aston Little v. Jamaica), views adopted on 1 November 1991.
B. Communication No. 255/1987, Carlton Linton v. Jamaica
(views adopted on 22 October 1992, forty-sixth session)
Submitted by: Carlton Linton (represented by counsel)
Alleged victim: The author
State party: Jamaica
Date of communication: 11 October 1987
Date of decision on admissibility: 24 July 1989
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 22 October 1992,
Having concluded its consideration of communication No. 255/1987, submitted to the Human Rights Committee by Mr. Carlton Linton 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 Carlton Linton, a Jamaican citizen currently serving a sentence of life imprisonment at St. Catherine District Prison, Jamaica. He claims to be a victim of violations of his rights under articles 7 and 14 of the International Covenant on Civil and Political Rights by Jamaica. He is represented by counsel.
Facts as submitted
2.1 The author was arrested in November 1979 and charged with the murder, on 2 July 1979, of a security guard in the Parish of Clarendon. He was tried in the Home Circuit Court, Kingston, found guilty as charged and sentenced to death on 17 November 1981. On 21 April 1983, the Court of Appeal dismissed his appeal, treating the hearing of the application for leave to appeal as the hearing of the appeal itself. A further petition for special leave to appeal to the Judicial Committee of the Privy Council was dismissed on 25 January 1988. According to counsel, the author's death sentence was commuted to life imprisonment by the Governor-General of Jamaica early in 1991.
2.2 Mr. Linton was said to be one of three armed men who, on 2 July 1979, went to the Vere Technical High School in the Parish of Clarendon, and shot down the victim, one Simeon Jackson. The author was identified by police constable W. Barrett, the principal prosecution witness who had found the victim lying next to the guardhouse of the school, as one of three men who had been running into a nearby canefield; on the occasion, the author allegedly wore something around his waist that "looked like a gun".
2.3 During the trial, Mr. Linton made an unsworn statement from the dock. While this was incoherent, it was clear that he claimed to know nothing about
the crime. His statement was interpreted by the Court of Appeal as meaning that, out of malice, Mr. Barrett had accused him of the murder.
2.4 The author considers that the evidence against him was wholly circumstantial and contradictory, and that the evidence of the only witness that could have proven Mr. Barrett to be wrong was rejected on the ground that she had not submitted a timely report to the police. The author also notes that during his pre-trial detention, he suffered "beating(s) and torture for over two months" at the hand of the police, whom he also accuses of having "trumped up" the charges against him by transferring the preliminary investigation from one police station to another.
2.5 As to the conditions of detention, the author indicates that throughout the years spent on death row, he experienced physical abuse and psychological torture. From 1986, the situation allegedly deteriorated gradually; thus, on 20 November 1986, warders allegedly led a party consisting of about 50 men who came to his cell early in the morning with clubs, batons and electric wire, forced him out and beat him unconscious. At around midnight the same day, he found himself on a stretcher in the hospital of Spanish Town, in severe pain, with bruises all over his body and blood trickling from his head. At 1 a.m., he was taken back to the prison and transferred to another cell. Subsequently, he contends, the warders tried to depict him as a "subversive character", so as to cover up the brutalities to which he had been subjected.
2.6 Towards the end of January 1988, five inmates were transferred to the death cells. When the rumour spread that a warrant for the execution of the author and of the inmate occupying the neighbouring cell, F. M., had also been issued, and warders began to tease the author and F. M. by describing in detail all the stages of the execution, the author and F. M. began to plan their escape. They sawed off the bars in front of their doors and, on 31 January 1988, attempted to escape by climbing over the prison walls. Warders fired at them; the author was hit in the hip, whereas F. M. was fatally shot in the head, allegedly after indicating his surrender.
2.7 The author notes that the injuries sustained in the escape attempt have left him handicapped, as medical treatment received subsequently was inadequate; as a result, he cannot walk properly. He considers that he cannot be held responsible for the escape attempt, on account of what had occurred previously. He further notes that he complained to the official charged with the investigation of the incident and to the prison chaplain. Since that time, he has not been given further information about the result of the investigation and his complaint.
Complaint
3.1 The author complains that he did not receive a fair trial, in violation of article 14, in that the trial judge misdirected the jury because she did not properly summarize the legal requirements of common design in relation to murder and manslaughter. It is submitted that the judge's direction on common design would at best have justified an indictment on burglary, since the jury was not told to ponder the question of whether the author became a party to the attack on Mr. Jackson and whether he joined in it with the intention of causing serious physical injury or death.
3.2 The author further contends, without providing additional details, that he was poorly assisted by the lawyer assigned to him for the preparation of his defence and during the trial. He also claims that he did not have adequate opportunities to consult with this lawyer prior to and during the trial.
3.3 The treatment suffered by the author during pre-trial detention (in 1979-1980) and on death row (especially in November 1986 and January 1988) is said to amount to a violation of articles 7 and 10, paragraph 1, of the Covenant.
State party's information and observations
4. In its submission under rule 91 of the Committee's rules of procedure, the State party argued that the communication was inadmissible under article 5, paragraph 2 (b), of the Optional Protocol, as the author had failed to avail himself of constitutional remedies in the Supreme (Constitutional) Court of Jamaica, thereby seeking to enforce his right to a fair trial under Section 20 of the Jamaican Constitution, in accordance with the procedure under Section 25 of the Constitution.
Decision on admissibility
5.1 During its thirty-sixth session in July 1989, the Committee considered the admissibility of the communication. While taking note of the State party's contention that the communication was inadmissible on account of the author's failure to avail himself of constitutional remedies, the Committee concluded that recourse to the Supreme (Constitutional) Court was not a remedy available to the author within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.
5.2 The Committee further noted that the application of domestic remedies since the trial of the author in 1981 had already been unreasonably prolonged, and held that the requirements of article 5, paragraph 2 (b), had been met.
5.3 On 24 July 1989, the Committee declared the communication admissible in so far as it appeared to raise issues under articles 7, 10 and 14 of the Covenant.
State party's objections to the decision on admissibility
6.1 In a submission dated 11 March 1991, the State party contends that the Committee's admissibility decision reflects a misunderstanding of the operation of Sections 25(1) and 25(2) of the Jamaican Constitution. The right to apply for redress under Section 25(1) is "without prejudice to any other action with respect to the same matter which is lawfully available". The only limitation in Section 25(2) is not applicable to the case in the State party's opinion, since the alleged breach of the right to a fair trial was not an issue in the author's criminal appeals:
"... If the contravention alleged was not the subject of the criminal law appeal, ex hypothesi, that appeal could hardly constitute an adequate remedy for that contravention. The decision of the Committee would render meaningless ... the constitutional rights of Jamaicans and persons in Jamaica, by its failure to distinguish between the right to appeal against the verdict and sentence of the court in a criminal case, and the ... right to apply for constitutional redress ...".
6.2 With respect to the Committee's finding that the application of domestic remedies had already been unreasonably prolonged, the State party notes that nothing in the author's complaint would point to any State party responsibility for such delays as may have occurred in the judicial proceedings. Accordingly, it requests the Committee to review the decision on admissibility.
Post-admissibility proceedings and examination of merits
7.1 The Committee has taken note of the State party's arguments on admissibility formulated after the Committee's decision declaring the communication admissible, especially in respect of the availability of constitutional remedies which the author may still pursue. It recalls that the Supreme Court of Jamaica has, in recent cases, allowed applications for constitutional redress in respect of breaches of fundamental rights, after the criminal appeals in these cases had been dismissed.
7.2 However, the Committee also recalls that by submission of 10 October 1991 concerning another case, a/ the State party indicated that legal aid is not provided for constitutional motions, and that it has no obligation under the Covenant to make legal aid available in respect of such motions, as they do not involve the determination of a criminal charge, as required under article 14, paragraph 3 (d), of the Covenant. In the view of the Committee, this supports the finding, made in the decision on admissibility, that a constitutional motion is not an available remedy for an author who has no means of his own to pursue it. In this context, the Committee observes that the author does not claim that he is absolved from pursuing constitutional remedies because of his indigence; rather it is the State party's unwillingness or inability to provide legal aid for the purpose that renders the remedy one that need not be pursued for purposes of the Optional Protocol.
7.3 The Committee further notes that the author was arrested in 1979, tried and convicted in 1981, and that his appeal was dismissed in 1983. The Committee deems that for purposes of article 5, paragraph 2 (b), of the Optional Protocol, the pursuit of constitutional remedies would, in the circumstances of the case, entail an unreasonable prolongation of the application of domestic remedies. Accordingly, there is no reason to revise the decision on admissibility of 24 July 1989.
8.1 The Committee is called upon to determine whether (a) the author was denied a fair trial, in violation of article 14, because of the alleged failure of the judge properly to direct the jury on the issue of common design, and (b) the treatment he was subjected to in detention was contrary to articles 7 and 10.
8.2 The Committee notes with regret the absence of cooperation from the State party in not making any submissions concerning the substance of the matter under consideration. It is implicit in article 4, paragraph 2, of the Optional Protocol, that a State party make available to the Committee all the information at its disposal; this is so even where the State party objects to the admissibility of the communication and requests the Committee to review its admissibility decision, as requests for a review of admissibility are examined by the Committee in the context of the consideration of the merits of a case, pursuant to rule 93, paragraph 4, of the Committee's rules of procedure. In the circumstances, due weight must be given to the author's allegations, to the extent that they have been substantiated.
8.3 In respect of the claim of unfair trial, the Committee recalls that it is in general for the courts of States parties to the Covenant to evaluate the facts and the evidence in a given case, and for the appellate courts to review the evaluation of such evidence by the lower courts. It is not in principle for the Committee to review the evidence and the judge's instructions to the jury in a trial by jury, unless it can be ascertained that the instructions were clearly arbitrary or amounted to a denial of justice, or that the judge otherwise violated his obligation of independence and impartiality. In Mr. Linton's case, the material before the Committee does not reveal that the instructions to the jury suffered from such defects; it accordingly concludes that there has been no violation of article 14, paragraph 1.
8.4 In respect of the author's contention that he was poorly represented and had inadequate opportunities for the preparation of his defence, the Committee notes that these claims were not, on the basis of the information before it, placed before the Jamaican courts. It further observes that these claims have not been substantiated to the extent that they would justify a finding of a violation of article 14, paragraph 3 (b) and (d), of the Covenant.
8.5 Concerning the author's claim of ill-treatment during pre-trial detention and on death row, the Committee deems it appropriate to distinguish between the various allegations. Concerning the claim of ill-treatment during pre-trial detention, the Committee notes that this has not been further substantiated. Other considerations apply to the claims relating to the author's treatment in November 1986 and January 1988, which have not been refuted by the State party. In the absence of such detailed refutation, the Committee considers that the physical abuse inflicted on the author on 20 November 1986, the mock execution set up by prison warders and the denial of adequate medical care after the injuries sustained in the aborted escape attempt of January 1988 constitute cruel and inhuman treatment within the meaning of article 7 and, therefore, also entail a violation of article 10, paragraph 1, of the Covenant, which requires that detained persons be treated with respect for their human dignity.
9. 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 a violation of articles 7 and 10, paragraph 1, of the Covenant.
10. The Committee urges the State party to take effective steps (a) to investigate the treatment to which Mr. Linton was subjected in November 1986 and subsequent to his aborted escape attempt in January 1988, (b) to prosecute any persons found to be responsible for his ill-treatment, and (c) to grant him compensation.
11. The Committee would wish to receive information, within ninety days, on any relevant measures adopted by the State party in respect of the Committee's views.
[Done in English, French, Russian and Spanish, the English text being the original version.]
Notes
a/ Communication No. 283/1988 (Aston Little v. Jamaica), views adopted on 1 November 1991.
C. Communication No. 263/1987, M. González del Río v. Peru
(views adopted on 28 October 1992, forty-sixth session)
Submitted by: Miguel González del Río
Alleged victim: The author
State party concerned: Peru
Date of communication: 19 October 1987
Date of decision on admissibility: 6 November 1990
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 28 October 1992,
Having concluded its consideration of communication No. 263/1987, submitted to the Human Rights Committee by Mr. Miguel González del Río 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 and noting with concern that no information whatever has been received from the State party
Adopts its views under article 5, paragraph 4, of the Optional Protocol.
1. The author of the communication is Miguel González del Río, a naturalized Peruvian citizen of Spanish origin, at present residing in Lima, Peru. He claims to be a victim of violations by Peru of articles 9, paragraphs 1 and 4, 12, 14, paragraphs 1 and 2, 17 and 26 of the International Covenant on Civil and Political Rights.
Facts as submitted
2.1 From 10 February 1982 to 28 December 1984, the author served as Director-General of the penitentiary system of the Peruvian Government. By Resolution No. 072-85/CG of 20 March 1985, the Comptroller General of Peru accused the author and several other high officials of illegal appropriation of government funds, in connection with purchases of goods and the award of contracts for the construction of additional penitentiaries. With retroactive effect, Mr. González' resignation, tendered on 28 December 1984, was transformed into a dismissal.
2.2 The author contends that a libelous press campaign against him and the other accused in the case, including the former Minister of Justice, Enrique Elías Laroza, accompanied the 1986 presidential elections in Peru. In spite of this campaign, led by papers loyal to the Government, Mr. Elías Laroza was elected deputy. Because of his parliamentary immunity, Mr. Elías Laroza, the principal target of the Comptroller General's report, was not subjected to arrest or detention, although a congressional investigation as to the charges that could be filed against the former Minister was initiated. He notes that
the lower officials, including himself, have been subjected to detention or threats of detention.
2.3 The author filed an action for amparo before the Vigésimo Juzgado Civil of Lima to suspend the Resolution of the Comptroller General. The judge granted the suspension and the Comptroller appealed, claiming that an action of amparo was premature and that the author should first exhaust available administrative remedies. The Court, however, ruled that in the circumstances it was not necessary to take the matter before the administrative tribunals, and as to the merits of the case, that the right of defence of the author and the other accused had been violated, since they had been ordered by the Comptroller General to make payments without proper determination of the sum or opportunity to study the books and compare the figures. The Court further decided that the Comptroller General did not have the authority to dismiss the author, nor to give retroactive effect to his resolutions. On appeal, however, the Superior Court of Lima reversed this finding, and the Supreme Court confirmed. The author then filed for amparo with the Constitutional Court (Tribunal de Garantías Constitucionales) alleging abuse of power by the Comptroller General, breach of the constitutional rights of defence and denial of access to documentation for the defence. By judgement of 15 September 1986, the Constitutional Court decided in the author's favour, ordering the suspension of the Comptroller's Resolution, and declaring the dismissal order to be unconstitutional. The author complains that although the Constitutional Court referred the case back to the Supreme Court for appropriate action, none had been taken as of March 1992, five and a half years later, despite repeated requests from the author.
2.4 In spite of the judgment of the Constitutional Court, the Comptroller's Office initiated criminal proceedings for fraud against the author; Mr. González applied for habeas corpus with the criminal court of Lima on 20 November 1986, against the examining magistrate No. 43; his action was dismissed on 27 November 1986. The author appealed the following day; the Tenth Criminal Tribunal (Décimo Tribunal Correccional de Lima) dismissed the appeal on 5 December 1986.
2.5 Undeterred, the author filed an action for nullity of his indictment (recurso de nulidad); on 12 December 1986, the court referred the matter to the Supreme Court. On 23 December 1986, the Second Criminal Chamber of the Supreme Court confirmed the validity of the indictment. Against this decision, the author filed an "extraordinary appeal for cassation" (recurso extraordinario de casación) with the Constitutional Court. On 20 March 1987, the Constitutional Tribunal held, in a split decision (four judges against two), that it could not compel the Supreme Court to execute the Constitutional Court's decision of 15 September 1986, since the author had not been subjected to detention and the Tribunal's earlier decision could not be invoked in the context of the request for amparo filed against examining magistrate No. 43.
2.6 With respect to the criminal action for fraud and embezzlement of public funds pending against the author, the Twelfth Criminal Tribunal of Lima (Duodécimo Tribunal Correccional de Lima) decided, on 9 December 1988 and upon the advice of the Chief criminal prosecutor of Peru, to file the case and suspend the arrest order against the author, as the preliminary investigations had failed to reveal any evidence of fraud committed by him.
2.7 The author states that this decision notwithstanding, another parallel criminal matter remains pending since 1985, and although investigations have not resulted in any formal indictment, an order for his arrest remains pending, with the result that he cannot leave Peruvian territory. This, according to the author, is where matters currently stand. In a letter dated 20 September 1990, he states that the Supreme Court has "buried" his file for years, and that, upon inquiry with the Court's president, he was allegedly told that the proceedings would "be delayed to the maximum possible extent" while he [the Court's president] was in charge, since the matter was a political one and he would not like the press to question the final decision, which would obviously be adopted in Mr. González' favour ("... que el caso iba a ser retardado al máximo mientras él estuviera a cargo, puesto que tratándose de un asunto político no quería que la prensa cuestionara el fallo final, obviamente a mi favor."). The author contends that the Supreme Court has no interest in admitting that its position is legally untenable, and that this explains its inaction.
Complaint
3.1 The author complains that he has not been reinstated as a public official, although he has been cleared of the charges against him by the decision of the Constitutional Tribunal and the decision of the Twelfth Criminal Court suspending the proceedings against him. He further alleges that his reputation and honour will be tainted as long as the Supreme Court fails to implement the decision of the Constitutional Court of 15 September 1986.
3.2 The author further complains that as one arrest warrant against him remains pending, his freedom of movement is restricted, in that he is prevented from leaving the territory of Peru.
3.3 It is further claimed that the proceedings against the author have been neither fair nor impartial, in violation of article 14, paragraph 1, as may be seen from the politically motivated statements of magistrates and judges involved in his case (see statement referred to in paragraph 2.7 above).
3.4 Finally, the author contends that he is a victim of discrimination and unequal treatment, because in a case very similar to his own, concerning a former Minister, the Attorney-General allegedly declared that it would not be possible to accuse lower-level officials as long as the legal issues concerning this former minister had not been solved. The author contends that his treatment constitutes discrimination based on his foreign origin and on his political opinions.
Issues and proceedings before the Committee
4.1 By decision of 15 March 1988, the Committee's Working Group transmitted the communication to the State party, requesting it, under rule 91 of the rules of procedure, to provide information and observations on the admissibility of the communication. On 19 July 1988, the State party requested an extension of the deadline for its submission, but despite two reminders addressed to it, no information was received.
4.2 During its fortieth session in November 1990, the Committee considered the admissibility of the communication. With respect to the requirement of exhaustion of domestic remedies, it concluded that there were no effective remedies available to the author in the circumstances of his case which he should have pursued. It further noted that the implementation of the Constitutional Court's decision of 15 September 1986 had been unreasonably prolonged within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.
4.3 On 6 November 1990, the Committee declared the communication admissible. It requested the State party to clarify exactly what charges had been brought against the author and to forward all relevant court orders and decisions in the case. It further asked the State party to clarify the powers of the Constitutional Court and to explain whether and in which way the Constitutional Court's decision of 15 September 1986 had been implemented. After a reminder addressed to it on 29 July 1991, the State party requested, by note of 1 October 1991, an extension of the deadline for its submission under article 4, paragraph 2, of the Optional Protocol until 29 January 1992. No submission has been received.
4.4 The Committee notes with concern the lack of any co-operation on the part of the State party, both in respect of the admissibility and the substance of the author's allegations. It is implicit in rule 91 of the rules of procedure and article 4, paragraph 2, of the Optional Protocol, that a State party to the Covenant investigate in good faith all the allegations of violations of the Covenant made against it and in particular against its judicial authorities, and to furnish the Committee with detailed information about the measures, if any, taken to remedy the situation. In the circumstances, due weight must be given to the author's allegations, to the extent that they have been substantiated.
5.1 As to the alleged violation of article 9, paragraphs 1 and 4, the Committee notes that the material before it does not reveal that, although a warrant for the author's arrest was issued, Mr. González del Río has in fact been subjected to either arrest or detention, or that he was at any time confined to a specific, circumscribed location or was restricted in his movements on the State party's territory. Accordingly, the Committee is of the view that the claim under article 9 has not been substantiated.
5.2 The Committee has noted the author's claim that he was not treated equally before the Peruvian courts, and that the State party has not refuted his specific allegation that some of the judges involved in the case had referred to its political implications (see para. 2.7 above) and justified the courts' inaction or the delays in the judicial proceedings on this ground. The Committee recalls that the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception. It considers that the Supreme Court's position in the author's case was, and remains, incompatible with this requirement. The Committee is further of the view that the delays in the workings of the judicial system in respect of the author since 1985 violate his right, under article 14, paragraph 1, to a fair trial. In this connection, the Committee observes that no decision at first instance in this case had been reached by the autumn of 1992.
5.3 Article 12, paragraph 2, protects an individual's right to leave any country, including his own. The author claims that because of the arrest warrant still pending, he is prevented from leaving Peruvian territory. Pursuant to paragraph 3 of article 12, the right to leave any country may be restricted, primarily, on grounds of national security and public order (ordre public). The Committee considers that pending judicial proceedings may justify restrictions on an individual's right to leave his country. But where the judicial proceedings are unduly delayed, a constraint upon the right to leave the country is thus not justified. In this case, the restriction on Mr. González' freedom to leave Peru has been in force for seven years, and the date of its termination remains uncertain. The Committee considers that this situation violates the author's rights under article 12, paragraph 2; in this context, it observes that the violation of the author's rights under article 12 may be linked to the violation of his right, under article 14, to a fair trial.
5.4 On the other hand, the Committee does not find that the author's right, under article 14, paragraph 2, to be presumed innocent until proved guilty according to law was violated. Whereas the remarks attributed to judges involved in the case may have served to justify delays or inaction in the judicial proceedings, they cannot be deemed to encompass a pre-determined judgement on the author's innocence or guilt.
5.5 Finally, the Committee considers that what the author refers to as a libelous and defamatory press campaign against him, allegedly constituting an unlawful attack on his honour and reputation, does not raise issues under article 17 of the Covenant. On the basis of the information before the Committee, the articles published in 1986 and 1987 about the author's alleged involvement in fraudulent procurement policies in various local and national newspapers cannot be attributed to the State party's authorities; this is so even if the newspapers cited by the author were supportive of the government then in force. Moreover, the Committee notes that it does not appear that the author instituted proceedings against those he considered responsible for the defamation.
6. 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 12, paragraph 2, and 14, paragraph 1, of the Covenant.
7. The Committee is of the view that Mr. González del Río is entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective remedy, including the implementation of the decision of 15 September 1986, delivered in his favour by the Constitutional Court. The State party is under an obligation to ensure that similar violations do not occur in the future.
8. The Committee would wish to receive information, within ninety days, on any relevant measures taken by the State party in respect of the Committee's views.
[Done in English, French, Russian and Spanish, the English text being the original version.]
D. Communication No. 274/1988, Loxley Griffiths v. Jamaica
(views adopted on 24 March 1993, forty-seventh session)*
Submitted by: Loxley Griffiths (represented by counsel)
Alleged victim: The author
State party: Jamaica
Date of communication: 16 January 1988
Date of decision on admissibility: 16 October 1989
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 24 March 1993,
Having concluded its consideration of communication No. 274/1988, submitted to the Human Rights Committee on behalf of Mr. Loxley Griffiths 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 by the State party,
Adopts its views under article 5, paragraph 4, of the Optional Protocol.
1. The author of the communication, dated 16 January 1988, is Loxley Griffiths, a Jamaican citizen currently serving a life sentence at the South Camp Rehabilitation Centre in Kingston, Jamaica. He claims to be a victim of violations by Jamaica of articles 7 and 14 of the International Covenant on Civil and Political Rights. He is represented by counsel.
Facts as submitted
2.1 The author was charged with the murder, on 19 August 1978, of his wife, Joy Griffiths. He was tried in the Home Circuit Court of Kingston on 11 and 12 February 1980, found guilty as charged by the jury, convicted and sentenced to death. The Court of Appeal of Jamaica dismissed his appeal on 28 May 1981; it issued a written judgement on 26 October 1981. On 20 February 1991, the Judicial Committee of the Privy Council dismissed the author's petition for special leave to appeal. The author contends that such delays as occurred in the judicial proceedings are attributable to factors beyond his control.
* Pursuant to rule 85 of the Committee's rules of procedure, Committee member Mr. Laurel Francis did not take part in the adoption of the Committee's views.
2.2 The author married Joy Griffiths on 18 June 1977. Six weeks prior to her death, she moved out of their residence and returned to the home of her mother, Violeta Mercurious. The prosecution's case was that on 19 August 1978 at around 7 p.m., the author arrived at the gate to Mrs. Mercurious' yard and began talking to his wife, who was washing at a stand-pipe. This was witnessed by Mrs. Mercurious and a friend of hers, Monica Dacres, who testified against the author. Ms. Dacres testified that Mr. Griffiths wore a bush jacket, under which his right arm was concealed. Both women testified that after some minutes of increasingly heated conversation, the author produced a machete from under his jacket, with which he dealt his wife two blows. According to the forensic expert who carried out the post-mortem examination, Joy Griffiths died as a result of hypovelmic and neurogenic shock, due to massive loss of blood from a wound in the neck.
2.3 Under cross-examination, the author admitted that his relations with his wife's family were poor but contended that he loved his wife. When he arrived at the gate on the evening in question, he saw Joy Griffiths sitting on the lap of a man called "Roy". When he remonstrated with her, she reacted angrily; the author then requested that she return some money which he had given her for safekeeping, but she refused. A quarrel ensued, and the author struck his wife with his fist. At this point, Joy Griffiths' brother, who had been watching the scene from the door, attacked the author with a cutlass. He struck two blows at the author which the latter avoided; instead, the blows fatally wounded Joy Griffiths. The author denied having taken a machete to the home of his wife's mother.
2.4 The author indicates that a warrant for his execution was issued on 22 December 1987, to be carried out on 5 January 1988. On 4 February 1991, the author informed the Committee that he had been transferred from the death row section of St. Catherine District Prison to the South Camp Rehabilitation Centre in Kingston. On 24 January 1992, counsel confirmed that his client's death sentence had been commuted to life imprisonment on 17 September 1990.
Complaint
3.1 The author alleges that his trial was unfair, and that several irregularities occurred in its course. He contends that, after his conviction, he learned that the Court Registrar was the nephew of the deceased. He complained to the Chief Justice and to the Ombudsman about the matter but received no reply; it is not apparent, however, that the issue was raised on appeal. Furthermore, it is submitted that the Registrar and the mother of the deceased were seen talking to members of the jury during the trial, and that the Registrar took the jury to the verdict room. The author adds that he was able to meet the trial judge, who is now retired, on 5 September 1988; the judge allegedly admitted that irregularities had occurred during the trial, but added that there was nothing he could do to help the author.
3.2 The author further argues that there were contradictions in the testimony given by Monica Dacres and the mother of the deceased, which the judge did not put to the jury. He further alleges that the judge misdirected the jury on the issue of manslaughter, and that he was wrong in refusing to leave the issue of provocation to the jury. In the author's opinion, since there was evidence of provocation, the judge was obliged to let the jury determine whether the requirements for the defence of provocation, governed by the Offences against the Person (Amendment) Act of 1958, had been satisfied, namely, that the author had in fact lost his self-control, and that a reasonable person would have lost his self-control in the circumstances. Instead, the judge directed the jury as follows:
"You must also be satisfied that the killing was unprovoked. Now when we speak of provocation in that sense we mean legal provocation into which I do not propose to go because, as you heard me indicate to learned counsel ... when he attempted to raise this matter of provocation to you, that there was no evidence before you on which the legal provocation which the law requires arises in this case and, as a consequence, it does not arise in this case for your consideration."
3.3 Finally, counsel submits that the time spent on death row, close to 11 years prior to commutation of sentence, amounts to cruel, inhuman and degrading treatment within the meaning of article 7 of the Covenant.
3.4 With respect to the requirement of exhaustion of domestic remedies, the author concedes that it is in principle for the appellant to seek constitutional protection and to show that the delays in the proceedings are not attributable to himself. He reiterates, however, that the delays in his case cannot be attributed to him. He emphasizes that he unsuccessfully requested the written judgements in his case, which are a prerequisite for lodging a petition for leave to appeal with the Judicial Committee. In this context, counsel observes that instructions from the author to a London law firm which had agreed to represent him before the Judicial Committee of the Privy Council on a pro bono basis, were received in the summer of 1988. Further court documents requested by this firm arrived in August 1988. The petition was returned by counsel on 17 October 1988, with a request for further information about the grounds of appeal which had been argued but not specified in the judgement of the Court of Appeal. Numerous attempts were made to obtain this information from the Court of Appeal of Jamaica and the author's legal aid representative for the appeal. Both replied in March 1990 and January 1991, respectively, but could not provide the information requested. Counsel therefore argues such delays as occurred were not attributable to negligence on the author's part.
State party's information and observations
4.1 By submission of 8 December 1988, the State party argued that the communication was inadmissible under article 5, paragraph 2 (b), of the Optional Protocol, as the author's case had, at that time, not been adjudicated by the Judicial Committee of the Privy Council. It added that legal aid is available for this purpose under Section 3, paragraph 1, of the Poor Prisoners' Defence Act.
4.2 By further submissions of 10 January and 7 September 1990, made after the adoption of the Committee's decision on admissibility, the State party affirmed that the rules of procedure of the Judicial Committee of the Privy Council do not make the production of a written judgement from the Court of Appeal a prerequisite for a petition for special leave to appeal to the Privy Council. Thus, although Rule 4 provides that a petitioner should lodge the judgement from which leave to appeal is sought, "judgement" is defined in Rule 1 as including a "decree, order, sentence, or decision of any court, judge, or judicial officer". The State party submitted that the order or decision of the Court of Appeal, as distinct from the reasoned judgement, was a sufficient basis for a petition for special leave to appeal to the Privy Council, and that the Judicial Committee had heard appeals on the basis of the mere order or decision of the Court of Appeal dismissing the appeal.
4.3 The State party contends that a copy of the written judgement of the Court of Appeal would have been available to the author's counsel from the date of its delivery, that is 26 October 1981. With regard to the alleged unreasonable delays in the judicial proceedings, the State party argues that no evidence establishing any government responsibility in this respect has been offered.
4.4 With respect to the allegation of unfair trial, finally, the State party submits, by reference to the Committee's jurisprudence, that the facts relied upon by the author merely seek to raise issues of facts and evidence in the case, which the Committee is not competent to evaluate. a/
Decision on admissibility and review thereof
5.1 During its thirty-seventh session in October 1989, the Committee considered the admissibility of the communication. With respect to the requirement of exhaustion of domestic remedies, the Committee observed that the author's failure, at that time, to petition the Judicial Committee of the Privy Council for special leave to appeal could not be attributed to him, as relevant court documents, which are a prerequisite for a petition for special leave to appeal to be entertained, had not been made available to him. The Committee further noted that the author's appeal had been dismissed in May 1981 and concluded that the pursuit of domestic remedies had been "unreasonably prolonged" within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.
5.2 On 16 October 1989, the Committee declared the communication admissible inasmuch as it appeared to raise issues under article 14 of the Covenant.
6.1 The Committee has taken note of the State party's contention, made after the adoption of the decision on admissibility, that the written judgement of the Court of Appeal would have been available to the author and his counsel upon delivery, i.e. as of 26 October 1981, and that there is no evidence of any State party responsibility concerning delays in the pursuit of domestic remedies. The Committee takes the opportunity to expand on its admissibility findings.
6.2 The Committee need not address the question of whether the Judicial Committee may consider petitions for special leave to appeal in the absence of a written judgement from the Court of Appeal of Jamaica, because the author's petition, dismissed on 20 February 1991, had in fact been accompanied by said judgement. As to the issue of delays in the judicial proceedings, the Committee considers that the State party has failed to show that the author, or his counsel, acted negligently in the pursuit of available remedies; the author's account of his efforts to obtain the written judgement of the Court of Appeal has not been challenged. In this context, the Committee reaffirms that the adoption of the written judgement cannot of itself be equated with "availability" of the same to either the appellant or to his counsel, and that there should be reasonably efficient channels through which either appellant or counsel may request and obtain relevant court documents. b/
6.3 For the above reasons, the Committee considers that there is no reason to reverse the decision on admissibility of 16 October 1989.
Examination of the merits
7.1 Two issues of substance are before the Committee: (a) whether alleged irregularities during the trial amounted to a violation of article 14 of the Covenant, and (b) whether prolonged detention on death row constitutes cruel, inhuman and degrading treatment within the meaning of article 7.
7.2 With respect to the author's claim under article 14, paragraph 1, the Committee recalls that it is in general for the courts of States parties to the Covenant to evaluate facts and evidence in a given case, and for the appellate courts to review the evaluation of such evidence by the lower courts. It is not in principle for the Committee to review the evidence and the judge's instructions to the jury, unless it is clear that the instructions were manifestly arbitrary or amounted to a denial of justice, or that the judge otherwise violated his obligation of impartiality. On the basis of the information before it, the Committee cannot conclude that the judge's instructions to the jury were arbitrary or biased, in particular with regard to the issue of legal provocation, where the judge directed the jury in a manner that has not been shown to be inconsistent with the applicable Jamaican law. The Committee, therefore, cannot find that the judge's instructions reveal a violation of article 14, paragraph 1, of the Covenant.
7.3 In respect of the author's claim concerning irregularities in the trial, including his allegation that two prosecution witnesses sought to influence members of the jury, the Committee notes that these allegations have not been substantiated as to lead the Committee to conclude that the author was denied the right to a fair trial. Moreover, it is to be noted that this latter allegation was not, on the basis of the information available to the Committee, placed before the Jamaican courts or any other competent judicial instance. In the circumstances, the Committee finds no violation of article 14.
7.4 With regard to the author's claim under article 7, the Committee notes that this allegation was substantiated at a late stage, after the adoption of the Committee's decision to declare the communication admissible in respect of article 14 of the Covenant, and after the commutation of the death sentence and the author's transfer from the death row section of St. Catherine District Prison to another penitentiary. Moreover, the Committee notes that the question whether prolonged detention on death row constitutes cruel, inhuman and degrading treatment was not placed before the Jamaican courts, nor brought before any other competent authority. The Committee is therefore unable to consider this allegation on its merits. It reiterates, however, that prolonged judicial proceedings do not per se constitute cruel, inhuman and degrading treatment, even if they may be a source of mental strain and tension for convicted prisoners. This also applies to appeal and review proceedings in cases involving capital punishment, although an assessment of the circumstances of each case would be necessary. In States whose judicial system provides for review of sentencing policies, an element of delay between the lawful imposition of a sentence of death and the exhaustion of available remedies is inherent in the review of the sentence.
8. 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 do not reveal a breach of any provision of the Covenant.
[Done in English, French, Russian and Spanish, the English text being the original version.]
Notes
a/ Communication No. 369/1989 (G. S. v. Jamaica), decision of 8 November 1989, para. 3.2.
b/ See communication No. 233/1987 (M. F. v. Jamaica), decision of 21 October 1991, para. 6.2.
E. Communication No. 282/1988, Leaford Smith v. Jamaica
(views adopted on 31 March 1993, forty-seventh session)*
Submitted by: Leaford Smith (represented by counsel)
Alleged victim: The author
State party: Jamaica
Date of communication: 15 February 1988
(initial submission)
Date of decision on admissibility: 17 October 1989
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 31 March 1993,
Having concluded its consideration of communication No. 282/1988, submitted to the Human Rights Committee by Mr. Leaford Smith 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 Leaford Smith, a Jamaican citizen awaiting execution at St. Catherine District Prison, Jamaica. He claims to be the victim of violations of his human rights by Jamaica.
Facts as submitted
2.1 The author was arrested on 27 October 1980 and charged with the murder, on 26 October 1980 in the Parish of St. James, of one Errol McGhie. On 26 January 1982, he was convicted and sentenced to death in the St. James Circuit Court. The Jamaican Court of Appeal dismissed his appeal on 24 September 1984. A subsequent petition for special leave to appeal to the Judicial Committee of the Privy Council was dismissed in February 1987, on the ground that there was no written judgement of the Jamaican Court of Appeal. A second petition for special leave to appeal was prepared and filed by the author's pro bono representative in London; this was dismissed on 15 December 1987 on unspecified grounds.
* Pursuant to rule 85 of the Committee's rules of procedure, Committee member Mr. Laurel Francis did not take part in the adoption of the Committee's views.
2.2 At the trial, the brother of the deceased, Owen McGhie, testified that on the evening of 26 October 1980, he, the deceased and three other men were talking on the main road when the author came out of a field with a sawn-off shotgun and fired a shot into the group. The prosecution further relied on sworn evidence given during the preliminary inquiry, held between 16 January and 26 March 1981, by another brother of the deceased, Merrick McGhie, and by one Ephel Williams. Neither witness was present at the trial.
2.3 The author gave a sworn statement from the dock, testifying that the deceased and others, including Owen McGhie, had lain in wait for him with the gun because they suspected him of having warned a group of "labourites" (supporters of the Jamaican Labour Party) about a plan to attack them. The author further claimed that one Lloyd Smart had aimed the gun at him and that it had gone off accidentally, killing Errol McGhie, as he, Leaford Smith, tried to knock it out of Lloyd Smart's hand.
2.4 According to the author, the prosecution's evidence, according to which the fatal shot was fired from a distance of about 5 metres, was at odds with the medical evidence, which estimated that the fatal shot was fired from a distance of no more than two feet. Besides, the author states, a shot fired from a 24-inch sawn-off shotgun into a gathering of people would have certainly resulted in the death or injury of more than one individual.
2.5 As to the appeal, the author indicates that the Court of Appeal only gave an oral judgement; he was subsequently informed by the Jamaica Council for Human Rights that no written judgement was to be expected.
2.6 On 17 November 1987, a warrant was issued for the execution of the author on 24 November 1987. A request for stay of execution was submitted by the author's counsel to the Governor-General of Jamaica, on the ground that new evidence had been obtained, which would justify a re-trial. Excerpts of counsel's petition read as follows:
"... I have had an opportunity to read the Affidavit of Ephel Williams and having regard to all the circumstances surrounding this case, it would appear that his disclosures as to what really transpired on the night of 26 October 1980, would, at the very least, influence Your Excellency in Council to grant a stay of execution so that these said disclosures may be carefully and diligently investigated and studied.
"The evidence given by the investigating officer at page 40 of the trial transcript disclosed that, when Leaford Smith was cautioned at the Montego Bay Police Station, he stated: 'Me never mean to shoot him'. At page 41 and 46, this statement is repeated to the same effect.
"This development would have attracted a verdict of manslaughter if the truth had been uncovered then ...
"One has to bear in mind that at that time the unlawful possession of a firearm attracted a mandatory sentence of life imprisonment, hence the basis to fabricate and implicate each other, not being unmindful of the more serious charge of murder.
"While the Crown is not saddled with the burden of establishing 'motive', and no motive was established in this case, the Crown witnesses stated that there was a good relationship between Mr. Smith and Mr. Errol McGhie ...
"This fact would further underscore the credible nature of Ephel William's affidavit which is further buttressed by the pathologist's evidence in which he stated that Errol McGhie was shot within a distance of two feet as contrasted with the Crown's version of eighteen feet ...".
2.7 The stay of execution was granted; pursuant to Section 29, paragraph 1 (a), of the Judicature (Appellate Jurisdiction) Act, the Governor-General referred the case back to the Court of Appeal for review. a/ Subsequently, the Court of Appeal granted leave to adduce new evidence in the case and a hearing was set for 29 February 1988; the hearing was postponed, reportedly on the ground that some of the relevant documents could not be located.
2.8 Under cover of a letter dated 10 January 1989, the author forwards a letter from his counsel which indicates that, on 5 December 1988, the Court of Appeal rejected the new evidence. Three affidavits were presented to the Court, all of which contradicted the evidence presented by the prosecution and the defence during the author's trial. Thus, the affidavits filed by Merrick McGhie and by Ephel Williams contradicted their own sworn evidence in support of the prosecution's case. Neither Mr. McGhie nor Mr. Williams can be located by the authorities. The third affidavit, by one Angela Robinson, contradicts in part the author's evidence. Although this witness was present in court on 5 December 1988, the judges declined to hear her, holding that the affidavits did not satisfy the test for the admissibility of fresh evidence. b/
2.9 The authors of the above-mentioned affidavits deny that Mr. Smith had emerged from the yamfield and fired into a group of people including the deceased. The affidavit of Merrick McGhie, dated 1 December 1987, states, in particular, "[t]hat any story about the killing of my brother that suggests that he was shot at deliberately is not true ... The insistence of my brother Owen that Leaford Smith shot my brother Errol intentionally was done only out of a desire to avoid implicating himself in the offence of unlawful possession of a firearm".
2.10 Ephel Williams, in his affidavit dated 8 August 1984, states: "The first time that I was called to give evidence at the Gun Court, I ... did not attend. On the second occasion, I was served a subpoena. I did not go to give evidence at the trial because I could not continue to be part of the plot to blame Leaford Smith for shooting Errol ... and I also feared, on good grounds, that if I attended court and told the truth, all Errol's relatives, especially Owen McGhie, would hurt me badly. ... That Owen, Merrick, Errol, Leaford, Junior James and I have lived fairly close to one another as we stand for and support socialism as a political belief and out of loyalty to them, but more so out of fear of reprisal I went along with that story and this is the reason why I previously told an untrue story. That neither Owen nor Leaford told the truth to the court. The gun went off when it was being passed from Leaford Smith to Owen McGhie who wanted to look at it".
Complaint
3.1 The author alleges that his trial was unfair. He contends that he had inadequate time to prepare his defence. He submits that he could only consult with his lawyer on the opening day of the trial. Furthermore, he was informed that one of the jurors was seen at the home of the deceased the night before the start of the trial. The judge, apparently, did not investigate the matter. In this context, he points out that although his trial lasted two days, it took the jury less than 20 minutes to return their verdict. The author further complains that the trial judge did not address the discrepancy between the evidence of the main witness for the prosecution and that of the pathologist. It is submitted that, although there were at least five potential witnesses to the shooting, only two were summoned to the trial, of whom only Owen McGhie said he had seen the actual shot being fired.
3.2 As to the appeal, the author submits that although the Jamaican Court of Appeal is not bound by law to produce a written judgement, it ought to do so in the interest of justice, especially in capital cases. He further claims that the absence of a written judgement deprived him of an effective appeal to the Judicial Committee of the Privy Council, since that body dismissed his petition on the ground that the merits of an appeal against conviction could not be considered.
State party's observations on admissibility
4. In its submission, dated 7 December 1988, the State party contends that the communication is inadmissible on the ground of non-exhaustion of domestic remedies, as required by article 5, paragraph 2 (b), of the Optional Protocol, without providing further explanations.
Committee's decision on admissibility
5. On 17 October 1989, the Committee declared the communication admissible in respect of article 14 of the Covenant. It noted the State party's contention that the communication was inadmissible because of non-exhaustion of domestic remedies, and observed that the Judicial Committee of the Privy Council had dismissed the author's petition for special leave to appeal on two occasions, and that the Court of Appeal rejected the author's application to review his case on the ground that the evidence adduced was inadmissible. In the circumstances, the Committee found that there were no further effective remedies for the author to exhaust.
Review of the decision on admissibility
6.1 By further submission of 7 January 1991, the State party reiterates that the communication is inadmissible because of non-exhaustion of domestic remedies. In respect of the alleged violations of article 14, it submits that the author can file for constitutional redress under Section 25 of the Jamaican Constitution, for violations of his rights protected by Section 20.
6.2 In reply to the State party's submission, counsel submits that a constitutional motion in the Supreme Court of Jamaica would inevitably fail, in the light of the precedent set by the Judicial Committee of the Privy Council's decisions in DPP v. Nasralla [(1967) 2 AER 161] and Noel Riley et al. v. Attorney-General [(1982) 3 AER 469], where it was held that the Jamaican Constitution was intended to prevent the enactment of unjust laws and not merely unjust treatment under the law. Since the author alleges unfair treatment under the law, and not that post-constitutional laws are unconstitutional, the constitutional remedy is not available to him.
6.3 Besides, counsel submits, if the State party were correct in asserting that a constitutional remedy was indeed available, at least in theory, it would not be available to the author in practice because of his lack of financial means and the unavailability of legal aid. Counsel affirms that it is extremely difficult to find a lawyer in Jamaica who is willing to represent applicants for purposes of a constitutional motion on a pro bono basis. Therefore, counsel concludes, it is the State party's inability or unwillingness to provide legal aid for such motions which absolved Mr. Smith from pursuing constitutional remedies.
7.1 The Committee has taken note of the State party's arguments on admissibility formulated after the Committee's decision declaring the communication admissible, especially in respect of the availability of constitutional remedies which the author may still pursue. It recalls that the Supreme Court of Jamaica has, in recent cases, allowed applications for constitutional redress in respect of breaches of fundamental rights, after the criminal appeals in these cases had been dismissed.
7.2 However, the Committee also recalls that by submission of 10 October 1991 concerning another case, c/ the State party indicated that legal aid is not provided for constitutional motions, and that it has no obligation under the Covenant to make legal aid available in respect of such motions, as they do not involve the determination of a criminal charge, as required under article 14, paragraph 3 (d), of the Covenant. In the view of the Committee, this supports the finding, made in the decision on admissibility, that a constitutional motion is not an available remedy for an author who has no means of his own to pursue it. In this context, the Committee observes that the author does not claim that he is absolved from pursuing constitutional remedies because of his indigence; rather it is the State party's unwillingness or inability to provide legal aid for the purpose that renders the remedy one that need not be pursued for purposes of the Optional Protocol. Accordingly, there is no reason to revise the decision on admissibility of 15 March 1990.
7.3 Furthermore, bearing in mind that the author was arrested in October 1980, convicted in January 1982, that his appeal was dismissed in October 1984 by the Court of Appeal and his petitions for special leave to appeal in 1987 by the Judicial Committee, and that furthermore the Court of Appeal of Jamaica rejected the author's application to review his case in December 1988, the Committee also finds that recourse to the Supreme (Constitutional) Court would entail an unreasonable prolongation of the application of domestic remedies which, together with the absence of legal aid, cannot be required of the author under article 5, paragraph 2 (b), of the Optional Protocol. There is, accordingly, no reason to reverse the decision on admissibility of 17 October 1989.
Examination of the merits
8. The State party contends that, as the author's claim of unfair trial is based on the contradictory nature of the evidence produced during the trial, it essentially raises issues of facts and evidence which the Committee is not competent to evaluate. In this connection, the State party refers to the Committee's jurisprudence.
9.1 Counsel submits that, prior to the trial, Mr. Smith had no opportunity to consult his legal representatives about the preparation of the defence. He only had a brief interview with his counsel, during a brief postponement on the first morning of the trial. It is submitted that the inadequate time the author had for the preparation of the defence amounts to a violation of article 14, paragraph 3 (b), of the Covenant.
9.2 Counsel further submits that, as a result of the author's inability to consult with his legal representatives, a number of key witnesses for the defence were not traced or called to the trial, constituting a violation of article 14, paragraph 3 (e), of the Covenant. Thus:
(a) According to Owen McGhie, the principal witness for the prosecution, five men were present at the time of the shooting. Of the four potential prosecution witnesses only Owen McGhie and one Junior James were called. Only Owen McGhie said that he saw the actual shot fired; Junior James gave circumstantial evidence. Neither Ephel Williams nor Merrick McGhie were called to give evidence at the trial; although both had made statements at the preliminary inquiry, L. B., the police officer in charge of the inquiry, denied at the trial that he had been able to contact either man. The affidavits of the two men indicate that, had they been available for examination and cross-examination at the trial, their evidence could have been crucial;
(b) Owen McGhie suggested that one F. was present at the locus in quo, and L. B. testified at the trial that F. had been arrested and charged in the case, but was subsequently acquitted. It is submitted that the defence had no opportunity to interview F., or to call him as a witness, due to lack of time for the preparation of the defence;
(c) The author maintained throughout his trial that, the day after the shooting, he went to the Spring Mount police station together with one F. W. in order to make a statement about what had happened. However, the officer on duty refused to take the statement, saying that he had already heard that he, Leaford Smith, had shot the deceased. He was then taken into custody. On 28 October 1980, he saw L. B. at the police station, giving the above-mentioned officer an order to transfer him to the Montego Bay police station. L. B., however, initially testified that he had first seen Mr. Smith, on 10 November 1980, at the Montego Bay police station, when the latter was charged with the murder of Errol McGhie; under cross-examination, L. B. later admitted that he had seen Mr. Smith some time earlier, at the Spring Mount police station. It is submitted that this important discrepancy was not effectively pursued by the defence at the trial. Furthermore, counsel submits that, due to the inadequate time available for the preparation of the defence, no investigations were carried out in respect of the author's claims, and that neither F. W. nor the officer involved was called to give evidence;
(d) The author further contended that F. was not present at the locus in quo; he claimed that Lloyd Smart was present and that he was detained but later released. Under cross-examination, Owen McGhie admitted that Lloyd Smart was detained in connection with the shooting; L. B., however, denied that he had ever been held. According to counsel, this was an important conflict of evidence, tending to cast further doubt on the honesty of L. B; yet the relevant police custody records were not checked by the defence due to inadequate time for the preparation of the case.
9.3 Counsel notes that the author was only tried 14 months after he was arrested. In particular, there was a delay of 10 months after the preliminary inquiry was closed; during this time, the author had no legal assistance, but since he was kept in police custody, he was unable to carry out his own investigations in order to prepare his defence.
9.4 Counsel further notes that it took another 32 months before the appeal was heard and dismissed, and that to date no written judgement has been issued by the Court of Appeal. In this context, counsel submits a letter, dated 20 June 1986, from the Registrar of the Court of Appeal indicating that no written judgement was to be expected in the author's case. The failure of the Court of Appeal to issue a written judgement within a reasonable time is said to amount to a violation of article 14, paragraphs 3 (c) and 5, of the Covenant, as it deprived the author of an effective appeal to the Judicial Committee of the Privy Council. Counsel points out that under rule 4 of the Privy Council rules, a reasoned judgement of the Court of Appeal is required if the Judicial Committee is to entertain an appeal. As to the further appeal hearing on 5 December 1988, counsel affirms that the author's representative was assured that the Court of Appeal would put its reasons in writing at a later date, but that no such document has been produced some four years later. Thus, it is submitted, the author is again prevented from effectively petitioning the Judicial Committee of the Privy Council, contrary to article 14, paragraphs 3 (c) and 5.
9.5 Finally, with reference to the Committee's jurisprudence, counsel submits that the imposition of a sentence of death upon the conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is available, a violation of article 6 of the Covenant. As there are no further remedies available to the author, and the final sentence of death was passed after a trial that did not meet the requirements of the Covenant, article 6 of the Covenant is said to be violated in the author's case.
10.1 As to the substance of Mr. Smith's allegations, the Committee notes with concern that the State party has confined itself to the observation that the facts relied upon by the author seek to raise issues of facts and evidence that the Committee is not competent to evaluate. The State party has not addressed any of the author's specific allegations concerning violations of fair trial guarantees. Article 4, paragraph 2, of the Optional Protocol enjoins a State party to investigate in good faith all the allegations of violations of the Covenant made against it and its judicial authorities, and to make available to the Committee all the information at its disposal. The Committee is of the opinion that the summary dismissal of the author's allegations, as in the present case, does not meet the requirements of article 4, paragraph 2. In the circumstances, due weight must be given to the author's allegations, to the extent that they have been substantiated.
10.2 The Committee does not accept the State party's contention that the communication merely seeks to raise issues of facts and evidence. The communication raises other issues concerning the law and practice of Jamaica in regard to capital cases which require examination on the merits. The Committee reaffirms its jurisprudence that it is in principle for the courts of States parties to the Covenant to evaluate facts and evidence in a particular case or to review specific instructions to the jury by the judge, unless it can be ascertained that the instructions to the jury or the judge's conduct of the trial are clearly arbitrary or amount to a denial of justice. Having reviewed the trial transcript, the Committee notes that the medical evidence strongly suggested that the deceased was shot from a very close range. This medical evidence was brought to the attention of the jury by the judge, and the jury chose not to take this evidence into account. The Committee therefore does not consider that the guarantees of a fair trial were violated in this regard.
10.3 In respect of the author's claim that the jury, or one of its members, was biased, the Committee notes that this issue has not been further substantiated and therefore does not reveal a violation of article 14 of the Covenant.
10.4 As to the author's claims that he was not allowed adequate time to prepare his defence and that, as a result, a number of key witnesses for the defence were not traced or called to give evidence, the Committee recalls its previous jurisprudence that the right of an accused person to have adequate time and facilities for the preparation of his defence is an important element of the guarantee of a fair trial and an emanation of the principle of equality of arms. d/ The determination of what constitutes "adequate time" requires an assessment of the circumstances of each case. In the instant case, it is uncontested that the trial defence was prepared on the first day of the trial. The material before the Committee reveals that one of the court-appointed lawyers requested another lawyer to replace him. Furthermore, another attorney assigned to represent the author withdrew the day prior to the trial; when the trial was about to begin at 10 a.m., the author's counsel asked for a postponement until 2 p.m., so as to enable him to secure professional assistance and to meet with his client, as he had not been allowed by the prison authorities to visit him late at night the day before. The Committee notes that the request was granted by the judge, who was intent on absorbing the backlog on the court's agenda. Thus, after the jury was empanelled, counsel had only four hours to seek an assistant and to communicate with the author, which he could only do in a perfunctory manner. This, in the Committee's opinion, is insufficient to prepare adequately the defence in a capital case. There is also, on the basis of the information available, the indication that this affected counsel's possibility of determining which witnesses to call. In the Committee's opinion, this constitutes a violation of article 14, paragraph 3 (b), of the Covenant.
10.5 It remains for the Committee to decide whether the failure of the Court of Appeal to issue a reasoned judgement violated any of the author's rights under the Covenant. Article 14, paragraph 5, of the Covenant guarantees the right of convicted persons to have the conviction and sentence reviewed "by a higher tribunal according to law". e/ For the effective exercise of this right, a convicted person must have the opportunity to obtain, within a reasonable time, access to duly reasoned judgements, for every available instance of appeal. The Committee observes that the Judicial Committee of the Privy Council dismissed the author's first petition for special leave to appeal because of the absence of a written judgement of the Jamaican Court of Appeal. It further observes that over four years after the dismissal of the author's appeal in September 1984 and his petitions for leave to appeal by the Judicial Committee in February and December 1987, no reasoned judgement had been issued, which once more deprived the author of the possibility to effectively petition the Judicial Committee. The Committee therefore finds that Mr. Smith's rights under article 14, paragraph 3 (c) and article 14, paragraph 5, of the Covenant, have been violated.
10.6 The Committee is of the opinion that the imposition of a sentence of death upon conclusion of a trial in which the provisions of the Covenant have not been respected, and which could no longer be remedied by appeal, constitutes a violation of article 6 of the Covenant. As the Committee noted in its General Comment 6 (16), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that "the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review [of conviction and sentence] by a higher tribunal". f/ In the instant case, since the final sentence of death was passed without having met the requirements for a fair trial set out in article 14, it must be concluded that the right protected by article 6 of the Covenant has been violated.
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 the Committee disclose violations of article 14, paragraphs 3 (b) and (c), the latter in conjunction with paragraph 5, and consequently of article 6 of the Covenant.
12. In capital punishment cases, the obligation of States parties to observe rigorously all the guarantees for a fair trial set out in article 14 of the Covenant admits of no exception. The Committee is of the view that Mr. Leaford Smith, a victim of violations of article 14 and consequently of article 6, is entitled, according to article 2, paragraph 3 (a), of the Covenant to an effective remedy, in this case entailing his release.
13. The Committee would wish to receive information, within 90 days, on any relevant measures taken by the State party in respect of the Committee's views.
[Done in English, French and Spanish, the English text being the original version.]
Notes
a/ Section 29, paragraph 1 (a), of the Judicature (Appellate Jurisdiction) Act, states: "The Governor-General ... may, if he thinks fit at any time, refer the whole case to the Court and the case shall then be heard and determined by the Court as in the case of an appeal by a person convicted".
b/ The Court of Appeal allows fresh evidence to be adduced if the evidence is relevant, credible and was not available at the trial. It would appear that the Court of Appeal was not satisfied with the credibility of the affidavits of Ephel Williams and Merrick McGhie, as they contradicted their sworn testimony at the preliminary inquiry: Ms. Robinson's evidence would appear to have been excluded on the ground that she had not seen what actually transpired at the locus in quo. This is all hypothetical, however, as the Court of Appeal has not issued in writing its reasons for rejecting the new evidence, although the Court stated at the hearing that it would do so.
c/ Communication No. 283/1988 (Aston Little v. Jamaica), views adopted on 1 November 1991.
d/ See communications Nos. 253/1987 (Paul Kelly v. Jamaica), views adopted on 8 April 1991, para. 5.9; and 283/1988 (Aston Little v. Jamaica), views adopted on 1 November 1991, para. 8.3.
e/ See communication No. 230/1987 (R. Henry v. Jamaica), views adopted on 1 November 1991, para. 8.4.
f/ See CCPR/C/21/Rev.1, General Comment 6 [16], para. 7.
F. Communication No. 292/1988, Delroy Quelch v. Jamaica
(views adopted on 23 October 1992, forty-sixth
session)
Submitted by: Delroy Quelch (represented by counsel)
Alleged victim: The author
State party: Jamaica
Date of communication: 24 February 1988
Date of decision on admissibility: 15 March 1990
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 23 October 1992,
Having concluded its consideration of communication No. 292/1988, submitted to the Human Rights Committee on behalf of Delroy Quelch 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 by the State party,
Adopts its views under article 5, paragraph 4, of the Optional Protocol.
1. The author of the communication is Delroy Quelch, a Jamaican citizen currently awaiting execution at St. Catherine District Prison, Jamaica. He claims to be a victim of a violation by Jamaica of articles 6, paragraphs 1, 7, and 14, paragraphs 1 and 3 (d), in conjunction with article 2, paragraph 3, of the International Covenant on Civil and Political Rights. He is represented by counsel.
Facts as submitted
2.1 The author states that he was arrested on 10 July 1984 on suspicion of complicity in the murder of a police constable, V. W., on 3 July 1984. He and his co-defendants, Errol Reece and Robert Taylor, were tried at the Portland Circuit Court and sentenced to death on 21 June 1985. Their appeal was dismissed by the Court of Appeal of Jamaica on 15 December 1986. All three defendants subsequently petitioned the Judicial Committee of the Privy Council for special leave to appeal. By decision of 27 July 1989, the Privy Council quashed the decision of the Jamaican Court of Appeal with respect to the author's co-defendants, whereas it dismissed the author's appeal.
2.2 The author states that, on 3 July 1984, he was approached by a man, whom he knew as "Chappel", and five other individuals. He was asked by Chappel to escort them since he was more familiar with the area they were heading to. On the way, they stopped to buy drinks, and the author and Chappel were ordered to wait while the others headed towards Moore Town Post Office a few blocks away. Upon their return, a half hour later, the men were armed with rifles and ordered the author to lead them to Millbank District, where they assaulted the driver of a van parked at the roadside and drove off in the van to a nearby hill; there
the men became engaged in a shoot-out with three policemen in plain clothes, one of whom was fatally shot. The author states that the men then threatened to kill him if he informed the police about the incident. He further maintains that it was only later the same day that he learned that the Moore Town Post Office had been robbed.
2.3 After his arrest, the author was placed on an identification parade during which, he claims, a serious error was made in that the parade sheet indicated that he had been standing in the No. 1 position, and not No. 9, as the witness who identified him testified. This issue was raised during the trial. The author adds that the main prosecution witness, a policeman who survived the shooting, testified to having seen him twice at a gate, and then running close to the scene of the crime. He contends that the description of him given by this witness did not at all correspond to his appearance, in particular his beard and the style of his hair at the time in question.
2.4 He further submits that he was assigned an inexperienced lawyer, who, in addition, was constantly obstructed in his defence by the judge. He concedes that witnesses called to testify against him were cross-examined but claims that those whom he sought to have testify on his behalf were not called by his legal aid lawyer. With respect to his appeal, the author claims that his court-appointed lawyer did not appear at all for the hearing.
2.5 By submission of 30 November 1989, counsel argues that the central issue in this case relates to the treatment of identification evidence. He submits that the author's identification by the main prosecution witness depended entirely on "fleeting glance" and points out that the witness admitted this himself during cross-examination. Counsel further contends that the author was denied the right to adequate and effective legal assistance, both during trial and appeal; in particular, his representative allegedly failed to call witnesses to testify that the author's identification parade had not been properly conducted and to attest to the author's appearance at the time of the offence, in order to clarify the alleged discrepancies in the prosecution witness' evidence.
Complaint
3. The author claims that he has been denied a fair trial, in violation of article 14, paragraph 1, of the Covenant; that he has been denied the right to adequate and effective legal representation, in violation of article 14, paragraph 3 (d), of the Covenant; that his death sentence is disproportionate and constitutes cruel and inhuman punishment, in violation of article 7 of the Covenant; that the execution of his death sentence would constitute an arbitrary deprivation of his life, in violation of article 6 of the Covenant. He further claims that he has been denied the right to an effective domestic remedy, in violation of article 2, paragraph 3, of the Covenant.
State party's observations and the author's comments thereon
4. By submission, dated 28 September 1989, the State party contends that, in spite of the dismissal of the author's petition by the Judicial Committee of the Privy Council, the communication is inadmissible for failure to exhaust domestic remedies, since the author has not pursued the remedies available to him under the Jamaican Constitution. In this context, the State party submits that the provisions of the Covenant invoked by the author (arts. 6, 7, and 14) are coterminous with the rights protected by sections 14, 17 and 20 of the Jamaican Constitution, which guarantee to everyone the right to life, protection against torture, inhuman or degrading punishment or treatment, and due process of law, respectively. Under the Constitution, if anyone alleges that any of these fundamental rights has been, is being or is likely to be contravened in relation to him, he may, without prejudice to any other action with respect to the same matter which is lawfully available, apply to the Supreme Court for redress.
5. In his comments on the State party's submission, counsel challenges the State party's contention that the author may still pursue constitutional remedies and submits that these remedies are not available to the author owing to lack of financial means and unavailability of legal aid for the purpose, despite the guarantees of section 25 (1) of the Jamaican Constitution.
Committee's considerations and decision on admissibility
6.1 During its thirty-eighth session, in March 1990, the Committee considered the admissibility of the communication. It observed that recourse to the Constitutional Court under section 25 of the Jamaican Constitution was not a remedy available to the author within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.
6.2 In respect of the author's contention that the judge failed to direct the jury adequately on the issue of identification evidence in the case, the Committee considered that, while article 14 of the Covenant guarantees the right to a fair trial, it is in principle for the appellate courts of States parties to the Covenant, and not for the Committee, to evaluate facts and evidence in a particular case and to review specific instructions to the jury. It found therefore that this part of the communication was inadmissible under article 3 of the Optional Protocol.
6.3 The Committee further considered that the author's claim that he suffered inhuman and degrading treatment in violation of article 7 of the Covenant had not been substantiated, for purposes of admissibility.
6.4 The Human Rights Committee, therefore, declared the communication admissible in so far as it might raise issues under article 14, paragraph 3 (d), of the Covenant, in respect of the claim that no lawyer was present during the author's appeal.
Review of admissibility
7. The State party, by submission of 6 February 1991, maintains that the communication is inadmissible because of the author's failure to file a constitutional motion.
8.1 The Committee has taken note of the State party's argument that constitutional remedies are still available to the author. It recalls that the Supreme Court of Jamaica has, in recent cases, allowed applications for constitutional redress in respect of breaches of fundamental rights, after the criminal appeals in these cases had been dismissed.
8.2 However, the Committee also recalls that by submission of 10 October 1991 concerning another case, a/ the State party indicated that legal aid is not provided for constitutional motions, and that it has no obligation under the Covenant to make legal aid available in respect of such motions, as they do not involve the determination of a criminal charge, as required under article 14, paragraph 3 (d), of the Covenant. In the view of the Committee, this supports the finding, made in the decision on admissibility, that a constitutional motion is not an available remedy for an author who has no means of his own to pursue it. In this context, the Committee observes that the author does not claim that he is absolved from pursuing constitutional remedies because of his indigence; rather it is the State party's unwillingness or inability to provide legal aid for the purpose that renders the remedy one that need not be pursued for purposes of the Optional Protocol.
8.3 The Committee further notes that the author was arrested in 1984, tried and convicted in 1985, and that his appeals were dismissed in December 1986 by the Court of Appeal of Jamaica and in July 1989 by the Judicial Committee of the Privy Council. The Committee deems that for purposes of article 5, paragraph 2 (b), of the Optional Protocol, the pursuit of constitutional remedies would, in the circumstances of the case, entail an unreasonable prolongation of the application of domestic remedies. Accordingly, there is no reason to revise the decision on admissibility of 15 March 1990.
Examination of the merits
9.1 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.
9.2 The Committee notes with concern that the State party in its submissions has confined itself to issues of admissibility. Article 4, paragraph 2, of the Optional Protocol enjoins a State party to investigate in good faith all the allegations made against it, and to make available to the Committee all the information at its disposal. The Committee observes that the State party's failure to meet the requirements of article 4, paragraph 2, of the Optional Protocol renders the examination of the instant communication unduly difficult.
9.3 With regard to the author's claim that he was not represented during the appeal proceedings, the Committee notes that the written judgement of the Court of Appeal shows that counsel for the author was present during the appeal hearing, and argued that the evidence against the author, based solely on identification by one eye-witness and the author's own statement to the police, was not sufficient. Accordingly, the Committee, in this respect, finds no violation of article 14, paragraph 3 (d), of the Covenant.
10. 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 do not disclose a violation of article 14 of the International Covenant on Civil and Political Rights.
[Done in English, French, Russian and Spanish, the English text being the original version.]
Notes
a/ Communication No. 283/1988 (Aston Little v. Jamaica), views adopted on 1 November 1991.
G. Communication No. 307/1988, John Campbell v. Jamaica
(views adopted on 24 March 1993, forty-seventh
session)**
Submitted by: John Campbell
Alleged victim: The author
State party: Jamaica
Date of communication: 20 June 1988
Date of decision on admissibility: 21 March 1991
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 24 March 1993,
Having concluded its consideration of communication No. 307/1988, submitted to the Human Rights Committee by John Campbell 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 and the State party,
Adopts its views under article 5, paragraph 4, of the Optional Protocol.*
1. The author of the communication (dated 20 June 1988) is John Campbell, a Jamaican citizen at the time of submission awaiting execution at St. Catherine District Prison, Jamaica. He claims that his rights under the International Covenant on Civil and Political Rights have been violated by Jamaica, without specifying which provisions of the Covenant he considers to have been violated.
Facts as submitted
2.1 The author states that after a marital argument on 2 December 1980, both he and his wife sustained burns. The wife was hospitalized and the author taken into custody, although the wife had not accused him of intentionally hurting her. On 3 December 1980, the investigating officer formally charged him with assault. On 13 December 1980, his wife died of pneumonia in the hospital.
2.2 Subsequently, the author was charged with murder, although, according to him, his wife had consistently refused to accuse him of injuring her
________________________
* An individual opinion submitted by Mr. Bertil Wennergren is appended.
** Pursuant to rule 85 of the Committee's rules of procedure, Committee member Mr. Laurel Francis did not take part in the adoption of the Committee's views.
intentionally. This was apparently corroborated by the investigating officer in his testimony before the Circuit Court. At the preliminary inquiry, the
author's 10-year-old son, Wayne, accused his father of having intentionally injured the mother. The eldest son, Ralston, testified that he was asleep when the event occurred. Both statements, according to the author, were false.
2.3 In June 1983 the author went on trial before the Circuit Court of Kingston. The legal aid attorney assigned to the case allegedly made a number of serious errors which contributed to the author's conviction. At the start of the trial, the author's son, Wayne, allegedly told the court that he did not see his father do anything and had no questions to answer. Since Wayne did not alter this statement after several searching questions from both the prosecutor and the judge, the judge allegedly threatened him with detention if he refused to answer. At the end of the first day of the trial, the author's son was in fact brought to the police headquarters and detained overnight. Upon resumption of the trial the next morning, the judge and the prosecutor resumed their questioning of the son; the latter, however, still refused to answer, and as a consequence, the judge adjourned. Upon resumption of the trial, the same scenario repeated itself, and Wayne allegedly broke down and testified against his father. The Circuit Court found the author guilty as charged and sentenced him to death. On 11 June 1985, the Court of Appeal dismissed his appeal.
2.4 Shortly after the rejection of the appeal, a representative of the Jamaica Council for Human Rights informed the author that Wayne had made a written statement revoking his testimony during the trial. Wayne stated that, on 2 December 1980, his father came home drunk and that a quarrel ensued between him and his mother. Apparently, in the course of the altercation, the deceased doused herself with kerosene oil and set herself ablaze with a match, given to her by the author. The author then ran out of the house, and his wife jumped into a cistern of water adjoining the house, in an attempt to seek relief from the burns sustained. She was taken to the hospital, where she died of pneumonia, 10 days later. In his written statement Wayne explains that he had previously made a statement to the effect that his father had poured the kerosene on his mother and set it alight, because he had blamed his father for his mother's death. Moreover, Wayne claims that he had been intimidated by the judge's attitude towards him during the trial, when he tried to alter his previous statement. In this context, he states: "I thought that if I changed the statement I would be sent to prison. This was when I gave evidence against Dad."
Complaint
3.1 The author claims that he was denied a fair trial, and that irregularities occurred throughout the judicial proceedings in his case. In particular, he submits that his legal representation was inadequate. During the preliminary investigation, his legal aid lawyer tried to persuade him to enter a plea of manslaughter, which the prosecution allegedly was willing to accept. The author refused and asked the court to assign another lawyer to the case; his request was granted. During the trial, his lawyer allegedly did not question the judge why he refused to accept Wayne's testimony that he had not witnessed the incident, why he had to enter a second plea, why Wayne had been remanded in custody for one day, and why he also had to take the oath a second time. The lawyer allegedly disregarded his complaints concerning the conduct of the trial. According to the author, the lawyer, when cross-examining Wayne, did not pose the appropriate questions and did not take up the opportunity afforded him by the judge, who asked if he had anything to say after the jury had returned without a verdict and with a request for more information. The author further claims that his lawyer should have objected when the judge prevented the author from continuing his testimony. No witnesses were sought to testify on the author's behalf.
3.2 With respect to the circumstances of the appeal, the author states that although he was informed that a legal aid lawyer had been assigned to him for the purpose, he only learned of his name after the appeal had been dismissed. He claims that he does not know whether he was in fact represented by his attorney during the hearing of the appeal. All his written requests for clarifications to his attorney went unanswered.
3.3 With regard to the requirement of exhaustion of domestic remedies, the author claims that he has unsuccessfully requested assistance from the Jamaica Council for Human Rights to file a petition for special leave to appeal to the Judicial Committee of the Privy Council. He further indicates that, in spite of numerous requests addressed to the lawyer who represented him before the Circuit Court and to the Jamaica Council for Human Rights, he has not succeeded in obtaining the written judgements in his case. On 4 December 1990, the Secretariat requested the author to indicate whether a written judgement in the case had been issued by the Court of Appeal, and whether he had taken any further steps to petition the Judicial Committee of the Privy Council. In his reply, the author confirms that in spite of numerous requests to the Registrar of the Supreme Court for the written judgements, including the judgement of the Court of Appeal, he has still not been able to obtain them.
State party's observations
4. In its only submission, the State party contended that the communication was inadmissible on the ground of non-exhaustion of domestic remedies, since the author could still petition the Judicial Committee of the Privy Council for special leave to appeal, pursuant to section 110 of the Jamaican Constitution.
Committee's decision on admissibility
5.1 During its forty-first session the Committee considered the admissibility of the communication. It considered that the author's failure to petition the Judicial Committee of the Privy Council could not be attributed to him, since the relevant court documents had not been made available to him, thereby frustrating his attempts to have his case entertained by the Judicial Committee.
5.2 Inasmuch as the author's claims related to the review and the evaluation of evidence, the communication was declared inadmissible under article 3 of the Optional Protocol. The Committee, however, considered that the author's allegations that his son was detained in order to force him to testify against him and that he was unrepresented during the hearing of his appeal should be considered on the merits. Accordingly, the Committee declared the communication admissible inasmuch as it might raise issues under article 14, paragraphs 1 and 3 (d) of the Covenant.
Examination of the merits
6.1 The Committee has considered the communication in the light of all the information made available to it by the parties, as required under article 5, paragraph 1, of the Optional Protocol. The Committee regrets the absence of cooperation by the State party regarding the substance of the matter under consideration. Article 4, paragraph 2, of the Optional Protocol enjoins a State party to investigate in good faith all the allegations of violations of the Covenant made against it and to make available to the Committee all the information at its disposal. In the absence of any State party submission on the merits of the case, due weight must be given to the author's allegations, to the extent that they have been substantiated.
6.2 In respect of the author's claim that he was not properly represented during the hearing of his appeal, the Committee notes with concern that the author was not notified of the name of his court-appointed lawyer until after the appeal was dismissed. This effectively prevented the author from consulting with his lawyer and from giving him instructions in preparation of the appeal. In the circumstances the Committee finds a violation of article 14, paragraph 3 (d), of the Covenant.
6.3 As regards the author's claim that his son Wayne was detained in order to force him to testify against him, the Committee observes that this is a grave allegation, which the author has endeavoured to substantiate, and which is corroborated by his son's statement. In the absence of any information from the State party, the Committee bases its decision on the facts as provided by the author.
6.4 Article 14 of the Covenant gives everyone the right to a fair and public hearing in the determination of a criminal charge against him; an indispensable aspect of the fair trial principle is the equality of arms between the prosecution and the defence. The Committee observes that the detention of witnesses in view of obtaining their testimony is an exceptional measure, which must be regulated by strict criteria in law and in practice. It is not apparent from the information before the Committee that special circumstances existed to justify the detention of the author's minor child. Moreover, in the light of his retraction, serious questions arise about possible intimidation and about the reliability of the testimony obtained under these circumstances. The Committee therefore concludes that the author's right to a fair trial was violated.
6.5 The Committee is of the opinion that the imposition of a sentence of death upon conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is possible, a violation of article 6 of the Covenant. As the Committee noted in its General Comment 6 (16), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that "the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review [of conviction and sentence] by a higher tribunal". a/ In the present case, since the final sentence of death was passed without having met the requirements for a fair trial set out in article 14, it must be concluded that the right protected by article 6 of the Covenant has been violated.
7. 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 a violation of articles 6 and 14, paragraphs 1 and 3 (d), of the International Covenant on Civil and Political Rights.
8. The Committee is of the view that Mr. John Campbell is entitled to an appropriate remedy. In this case, as the Committee finds that Mr. Campbell did not receive a fair trial, the Committee considers that the appropriate remedy entails release. The State party is under an obligation to ensure that similar violations do not occur in the future.
9. The Committee wishes to receive information, within 90 days, from the State party in respect of the Committee's views.
[Done in English, French and Spanish, the English text being the original version.]
Notes
a/ See CCPR/C/21/Rev.1, General Comment 6 [16], para. 7.
Appendix
Individual opinion submitted by Mr. Bertil Wennergren, pursuant
to rule 94, paragraph 3, of the Committee's rules of procedure
concerning the Committee's views on communication No. 307/1988,
John Campbell v. Jamaica
I concur with the Committee's findings. However, my reasons for finding a violation of the author's right to a fair trial differ from those explained by the Committee in paragraph 6.4 of the views.
Article 14, paragraph 1, of the Covenant entitles everyone to a fair and public hearing by a competent, independent and impartial tribunal established by law. Paragraph 3 of the same article contains further guarantees for those charged with a criminal offence. In the present context, one may recall article 14, paragraph 3 (e), which guarantees that an accused shall have the right, in full equality, to examine or have examined, the witnesses against him and to obtain the attendance and the examination of witnesses on his behalf under the same conditions as witnesses against him. In my opinion, however, the issue in this case is not whether the principle of equality of arms was violated with respect to hearing the author's son Wayne as a witness, but whether his examination was compatible with the principles of due process of law and fair trial. It must be recalled first that, when Wayne was heard as a witness by the court, he was merely 13 years of age, and he was expected to truthfully recount an event which had occurred nearly three years earlier, when he was 10, and which might seriously incriminate his father. Secondly, measures of coercion were employed against him to make him testify and otherwise comply with his obligations as a witness.
Although most legal systems provide for the possibility of hearing children as witnesses in court, it is generally understood that particular care must be exercised in view of the vulnerability of children. Measures must be taken to ensure that a child is stable and mature enough to withstand the pressures and the stress that witnesses in a criminal case may encounter. If a hearing is considered necessary and may be carried out without risk for the child's well-being, every effort must be made to conduct the hearing in as considerate and sympathetic a way as possible. In the same context, it should be recalled that article 24 of the Covenant entitles every child to such measures of protection as are required by his status as a minor.
There is ample reason to believe that when Wayne testified in court, he had acquired a degree of maturity that calling him as a witness was as such permissible. However, an aggravating factor was that he was the accused's son and, moreover, the only person whom the prosecution could adduce as witness to prove the guilt of Mr. Campbell. Some legal systems exempt individuals from the obligation to testify against close relatives, the rationale being that an obligation to testify would be inhuman and thus unacceptable. Due to the lack of a generally recognized principle in this respect, however, I cannot rule out as inadmissible the hearing of Wayne as a witness simply because he was the son of the accused.
The case file contains a letter written by Wayne, in which he states that he was the "crown evidence" and gave a statement against his father in court. At that time, he was 10 years old. He was frightened and believed that his father was the cause of everything, and he was upset with him then. In respect of the trial, he mentions in his letter that he told the court that it had been his father who had thrown the oil on his mother and lit the matches; at that point, he stopped talking, and the judge ordered him taken into custody. He spent one night in the central police lock-up. Scared, he planned on changing his statement, but the judge scared him even further. He thought that if he changed his statement, he would be sent to prison; this is when he "gave evidence against Dad".
Testimony in a court of law is civic duty and all legal systems provide for certain coercive measures to guarantee compliance with that duty. Subpoena and imprisonment are the most common coercive measures and should be used for the equal benefit of the prosecution and the defence, whenever deemed necessary for the presentation of evidence to the jury which, on the basis of such evidence, must determine guilt or innocence of the accused. In its views, the Committee observes that the detention of witnesses is an exceptional measure, which must be regulated by strict criteria in practice and in law, and that it is not apparent that special circumstances existed in the author's case to justify the detention of a 13-year old. For me, it is difficult to imagine circumstances that would justify a child's detention in order to compel him to testify against his father. In any event, this case in no way discloses such special circumstances; the judge therefore must be deemed to have violated the principle of due process of law, and the requirements of a fair hearing under article 14, paragraph 1. The violation was in fact the violation of the rights of a witness, but its negative impact on the conduct of the trial was such that it rendered it unfair within the meaning of article 14, paragraph 1, of the Covenant.
H. Communication No. 309/1988, Carlos Orihuela Valenzuela v.
Peru (views adopted on 14 July 1993, forty-eighth session)
Submitted by: Carlos Orihuela Valenzuela
Alleged victims: The author and his family
State party: Peru
Date of communication: 29 June 1988
Date of decision on admissibility: 22 March 1991
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 14 July 1993,
Having concluded its consideration of communication No. 309/1988, submitted to the Human Rights Committee by Mr. Carlos Orihuela Valenzuela 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, and noting with serious concern that no information on the merits of the case has been received from the State party,
Adopts its views under article 5, paragraph 4, of the Optional Protocol.
1. The author of the communication dated 29 June 1988 is Carlos Orihuela Valenzuela, a Peruvian citizen residing at Lima, Peru. He claims to be a victim of a violation by the Government of Peru of his human rights but does not invoke any articles of the International Covenant on Civil and Political Rights.
Facts as submitted
2.1 The author, a member of the Peruvian bar (Colegio de Abogados) and a civil servant for 26 years, was named counsel for the Chamber of Deputies in 1982 and served in the Peruvian Human Rights Commission for five years. Following the change of government in Peru in 1985, he was dismissed from his post at the Chamber of Deputies without any administrative proceedings. The author states that he has six school-age children and that he is not receiving the civil servant's pension to which he claimed to be entitled.
2.2 With regard to the requirement of exhaustion of domestic remedies, the author states that he has unsuccessfully tried all administrative and judicial remedies. He alleges that the proceedings have been frustrated for political reasons and have been unduly prolonged. On 7 November 1985 he petitioned for the reconsideration of his dismissal (recurso de reconsideración) but he alleges that, on the express order of a senior deputy, his petition was not processed. On 10 April 1986, he renewed his request by way of a complaint (queja), which was similarly not processed by the authorities. On 8 May 1986, he lodged an action (denuncia) before the President of the Chamber of Deputies, again without any response. On 11 June 1986, he addressed a request to the Chamber of Deputies based on Law 24514 and Legislative Decree No. 276, again without any response. On 23 June 1986, he presented an appeal (recurso de apelación) to the President of the Chamber of Deputies, which was similarly ignored.
2.3 On 2 July 1986, he had recourse to the Civil Service Tribunal (Tribunal del Servicio Civil en Apelación), but three months later the Chamber of Deputies addressed a memorandum to the Tribunal ordering it to respect its resolution dismissing the author, invoking article 177 of the Peruvian Constitution. This last administrative instance allegedly complied with the order of the Chamber of Deputies and terminated its investigation of the case.
2.4 On 5 September 1986, the author filed an action for reinstatement in the civil service with a court of first instance in Lima, which, on 23 July 1987, decided against him. On appeal, the matter was taken up by the Superior Court of Lima (Segunda Sala Civil de la Corte Superior de Lima), which, on 21 March 1988, requested the Civil Service Tribunal to forward the author's dossier. The Civil Service Tribunal did not comply with the request of the Superior Court and, by order of 29 December 1988, the Superior Court dismissed the appeal.
2.5 An action against the Chamber of Deputies concerning the author's rights to severance pay (pensíon de cesantía) has been pending before the Supreme Court (Segunda Sala de la Corte Suprema) since 1 February 1989. In October 1989 the competent organ of the Chamber of Deputies resolved to grant him severance pay corresponding to his 26 years of civil service. The President of the Chamber, however, never signed the resolution and to this date no pension has been paid.
2.6 He further alleges that members of his family have been subjected to ill-treatment and humiliation, in particular that in 1989 his 22-year-old son Carlos was arbitrarily detained by the police and subjected to beatings, that he was given a shower in his clothes at the Lince police station, as a consequence of which he became ill and had to be hospitalized in the bronchio-pulmonary section of a clinic and that his other son Lorenzo was subjected to arbitrary arrest and detention on two occasions; moreover, that as part of the general harassment against the Orihuela family, his son Carlos has been barred from participating in the entrance examinations to the university. He has denounced these abuses to the competent prosecuting authorities (Fiscalía Penal de Turno), without redress.
Complaint and relief sought
3. The author alleges that he and his family have been subjected to defamation and discrimination because of their political opposition to the Government of the then President Alan García of the American Popular Revolutionary Alliance party, and that all attempts to obtain redress have been met by a politically motivated denial of justice. In particular, he claims that his sons have been subjected to arbitrary arrest and ill-treatment, and that he was unjustly dismissed from the civil service and denied a fair hearing in the courts, that he is being debarred from reinstatement in any post in the civil service, that he received no severance pay upon dismissal after 26 years of service, and that his honour and reputation have been unjustly attacked. He seeks, inter alia, reinstatement in his post and compensation for the unjust dismissal.
Admissibility considerations
4.1 On 21 November 1988, the State party was requested to furnish information on the question of admissibility of the communication, including details of effective domestic remedies. The State party was also requested to furnish the Committee with copies of all relevant administrative and judicial orders and decisions in the case, in so far as they had not already been submitted by the author, and to inform the Committee of the status of the action pending before the Superior Court of Lima (Segunda Sala de la Corte Superior de Lima). No submission from the State party on the question of admissibility was received, in spite of a reminder sent on 14 August 1989.
4.2 During its forty-first session, the Committee considered the admissibility of the communication. It ascertained, as it is required to do under article 5, paragraph 2 (a), of the Optional Protocol, that the same matter was not being examined under another procedure of international investigation or settlement. With regard to article 5, paragraph 2 (b), of the Optional Protocol, the Committee was unable to conclude, on the basis of the information before it, that there were effective remedies available to the author which he could or should have pursued. Moreover, the application of existing remedies had been unreasonably prolonged within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.
4.3 With regard to the author's allegations relating to an arbitrary denial of redress for the dismissal from his post as counsel for the Chamber of Deputies, as well as his claim to have been subjected to unfair judicial proceedings and judicial bias, the Committee found that these allegations had not been substantiated, for purposes of admissibility.
4.4 The Committee found that the author's other allegations, in particular those related to the arbitrary denial of severance pay as well as those related to the harassment of his family, notably his two sons, had been substantiated, for purposes of admissibility, and should be considered on the merits.
5. On 22 March 1991, the Human Rights Committee declared the communication admissible inasmuch as it might raise issues under articles 10, 17 and 26 of the Covenant. The Committee again requested the State party to forward copies of any relevant orders or decisions in the author's case, and to clarify the relationship between the Chamber of Deputies and the Civil Service Tribunal and other courts.
Examination of the merits
6.1 In spite of reminders sent to the State party on 9 January and 26 August 1992, only a submission concerning domestic remedies was received, but no submission on the merits of the case. The Committee notes with concern the lack of any cooperation on the part of the State party in respect of the substance of the author's allegations. It is implicit in article 4, paragraph 2, of the Optional Protocol that a State party to the Covenant must investigate in good faith all the allegations of violations of the Covenant made against it and its authorities, and furnish the Committee with detailed information about the measures, if any, taken to remedy the situation. In the circumstances, due weight must be given to the author's allegations, to the extent that they have been substantiated.
6.2 As to the alleged violation of article 10, paragraph 1, of the Covenant, in respect of the author's children, the Committee notes that the material before it indicates that the author's two adult sons have been subjected to ill-treatment during detention, including beatings. The author's adult sons, however, are not co-authors of the present communication and therefore the Committee makes no finding in regard to a violation of their rights.
6.3 The Committee notes that these allegations of ill-treatment against members of the author's family have not been contested by the State party. However, the author's allegations do not provide sufficient substantiation so as to justify a finding of a violation of article 17 of the Covenant.
6.4 The Committee has noted the author's claim that he has not been treated equally before the Peruvian courts in connection with his pension claims. The State party has not refuted his allegation that the courts' inaction, the delays in the proceedings and the continued failure to implement the resolution of October 1989 concerning his severance pay are politically motivated. The Committee concludes, on the basis of the material before it, that the denial of severance pay to a long-standing civil servant who is dismissed by the Government constitutes, in the circumstances of this case, a violation of article 26 and that Mr. Orihuela Valenzuela did not benefit "without any discrimination [from] equal protection of the law". Therefore, the Committee finds that there has been a violation of article 26 of the Covenant.
7. 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 reveal a violation of article 26 of the Covenant.
8. The Committee is of the view that Mr. Carlos Orihuela Valenzuela is entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective remedy, including a fair and non-discriminatory examination of his claims, appropriate compensation and such severance pay as he would be entitled to under Peruvian law. The State party is under an obligation to take measures to ensure that similar violations do not occur in the future.
9. The Committee would wish to receive information, within 90 days, on any relevant measures taken by the State party in respect of the Committee's views.
[Done in English, French and Spanish, the English text being the original version.]
I. Communication No. 314/1988, Peter Chiiko Bwalya v. Zambia
(views adopted on 14 July 1993, forty-eighth session)
Submitted by: Peter Chiiko Bwalya
Victim: The author
State party: Zambia
Date of communication: 30 March 1988 (initial submission)
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 14 July 1993,
Having concluded its consideration of communication No. 314/1988, submitted to the Human Rights Committee by Mr. Peter Chiiko Bwalya 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 and the State party,
Adopts its views under article 5, paragraph 4, of the Optional Protocol.
1. The author of the communication is Peter Chiiko Bwalya, a Zambian citizen born in 1961 and currently chairman of the People's Redemption Organization, a political party in Zambia. He claims to be a victim of violations of the International Covenant on Civil and Political Rights by Zambia.
Facts as submitted
2.1 In 1983, at the age of 22, the author ran for a parliamentary seat in the Constituency of Chifubu, Zambia. He states that the authorities prevented him from properly preparing his candidacy and from participating in the electoral campaign. The authorities' action apparently helped to increase his popularity among the poorer strata of the local population, as the author was committed to changing the Government's policy towards, in particular, the homeless and the unemployed. He claims that in retaliation for the propagation of his opinions and his activism, the authorities subjected him to threats and intimidation, and that in January 1986 he was dismissed from his employment. The Ndola City Council subsequently expelled him and his family from their home, while the payment of his father's pension was suspended indefinitely.
2.2 Because of the harassment and hardship to which he and his family were being subjected, the author emigrated to Namibia, where other Zambian citizens had settled. Upon his return to Zambia, however, he was arrested and placed in custody; the author's account in this respect is unclear and the date of his return to Zambia remains unspecified.
2.3 The author notes that by September 1988 he had been detained for 31 months, on charges of belonging to the People's Redemption Organization - an association considered illegal under the terms of the country's one-party Constitution - and for having conspired to overthrow the Government of the then President Kenneth Kaunda. On an unspecified subsequent date, he was released; again, the circumstances of his release remain unknown. At an unspecified later date, Mr. Bwalya returned to Zambia.
2.4 On 25 March 1990, the author sought the Committee's direct intercession in connection with alleged discrimination, denial of employment and refusal of a passport. By letter of 5 July 1990, the author's wife indicated that her husband had been rearrested on 1 July 1990 and taken to the Central Police Station in Ndola, where he was reportedly kept for two days. Subsequently, he was transferred to Kansenshi prison in Ndola; the author's wife claims that she was not informed of the reasons for her husband's arrest and detention.
2.5 With respect to the requirement of exhaustion of domestic remedies, the author notes that he instituted proceedings against the authorities after his initial arrest. He notes that the district tribunal reviewing his case confirmed, on 17 August 1987, that he was no danger to national security but that, notwithstanding the court's finding, he remained in custody. A further approach to the Supreme Court met with no success.
Complaint
3.1 In his initial submissions, the author invokes a large number of provisions of the Covenant, without substantiating his allegations. In subsequent letters, he confines his claims to alleged violations of articles 1, 2, 3, 9, 10, 12, 25 and 26 of the Covenant.
3.2 The author contends that, since he never participated in any conspiracy to overthrow the Government of President Kaunda, his arrests were arbitrary and his detentions unlawful, and that he is entitled to adequate compensation from the State party. He submits that following his release from the first period of detention he continued to be harassed and intimidated by the authorities; he claims that he denounced these practices.
3.3 The author states that, as a political activist and former prisoner of conscience, he has been placed under strict surveillance by the authorities, and that he continues to be subjected to restrictions on his freedom of movement. He claims that he has been denied a passport as well as any means of making a decent living.
Issues and proceedings before the Committee
4.1 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 it is admissible under the Optional Protocol to the Covenant.
4.2 During its forty-first session, the Committee considered the admissibility of the communication. It noted with concern the absence of cooperation from the State party which, in spite of four reminders addressed to it, had failed to comment on the admissibility of the communication. It further noted that the author's claim that the Supreme Court had dismissed his appeal had remained uncontested. In the circumstances, the Committee concluded that the requirements of article 5, paragraph 2 (b), of the Optional Protocol had been met.
4.3 As to the claims relating to articles 7 and 10 of the Covenant, the Committee considered that the author had failed to substantiate his claim, for purposes of admissibility, that he had been subjected to treatment in violation of these provisions. Accordingly, the Committee found this part of the communication inadmissible under article 2 of the Optional Protocol.
4.4 With respect to the author's claims that he: (a) had been subjected to arbitrary arrest and unlawful detention; (b) had been denied the right to liberty of movement and arbitrarily denied a passport; (c) had been denied the right to take part in the conduct of public affairs; and (d) had been discriminated against on account of political opinion, the Committee considered that they had been substantiated, for purposes of admissibility. Furthermore, the Committee was of the opinion that, although articles 9, paragraph 2, and 19 had not been invoked, the facts as submitted might raise issues under these provisions.
4.5 On 21 March 1991, the Committee declared the communication admissible in so far as it appeared to raise issues under articles 9, 12, 19, 25 and 26 of the Covenant.
5.1 In a submission dated 28 January 1992, the State party indicates that "Mr. Peter Chiiko Bwalya has been released from custody and is a free person now". No information on the substance of the author's allegations, nor copies of his indictment or any judicial orders concerning the author, have been provided by the State party, in spite of reminders addressed to it on 9 January and 21 May 1992.
5.2 In a letter dated 3 March 1992, the author confirms that he was released from detention but requests the Committee to continue consideration of his case. He adds that the change in the Government has not changed the authorities' attitude towards him.
6.1 The Committee has considered the communication in the light of all the information provided by the parties. It notes with concern that, with the exception of a brief note informing the Committee of the author's release, the State party has failed to cooperate on the matter under consideration. It further recalls that it is implicit in article 4, paragraph 2, of the Optional Protocol that a State party examine in good faith all the allegations brought against it, and that it provide the Committee with all the information at its disposal, including all available judicial orders and decisions. The State party has not forwarded to the Committee any such information. In the circumstances, due weight must be given to the author's allegations, to the extent that they have been substantiated.
6.2 In respect of issues under article 19, the Committee considers that the uncontested response of the authorities to the attempts of the author to express his opinions freely and to disseminate the political tenets of his party constitute a violation of his rights under article 19.
6.3 The Committee has noted that when the communication was placed before it for consideration, Mr. Bwalya had been detained for a total of 31 months, a claim that has not been contested by the State party. It notes that the author was held solely on charges of belonging to a political party considered illegal under the country's (then) one-party constitution and that on the basis of the information before the Committee, Mr. Bwalya was not brought promptly before a judge or other officer authorized by law to exercise judicial power to determine the lawfulness of his detention. This, in the Committee's opinion, constitutes a violation of the author's right under article 9, paragraph 3, of the Covenant.
6.4 With regard to the right to security of person, the Committee notes that Mr. Bwalya, after being released from detention, has been subjected to continued harassment and intimidation. The State party has not contested these allegations. The first sentence of article 9, paragraph 1, guarantees to everyone the right to liberty and security of person. The Committee has already had the opportunity to explain that this right may be invoked not only in the context of arrest and detention, and that an interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render ineffective the guarantees of the Covenant. a/ In the circumstances of the case, the Committee concludes that the State party has violated Mr. Bwalya's right to security of person under article 9, paragraph 1.
6.5 The author has claimed, and the State party has not denied, that he continues to suffer restrictions on his freedom of movement, and that the authorities have refused to issue a passport to him. This, in the Committee's opinion, amounts to a violation of article 12, paragraph 1, of the Covenant.
6.6 As to the alleged violation of article 25 of the Covenant, the Committee notes that the author, a leading figure of a political party in opposition to the former President, has been prevented from participating in a general election campaign as well as from preparing his candidacy for this party. This amounts to an unreasonable restriction on the author's right to "take part in the conduct of public affairs" which the State party has failed to explain or justify. In particular, it has failed to explain the requisite conditions for participation in the elections. Accordingly, it must be assumed that Mr. Bwalya was detained and denied the right to run for a parliamentary seat in the Constituency of Chifubu merely on account of his membership in a political party other than that officially recognized; in this context, the Committee observes that restrictions on political activity outside the only recognized political party amount to an unreasonable restriction of the right to participate in the conduct of public affairs.
6.7 Finally, on the basis of the information before it, the Committee concludes that the author has been discriminated against in his employment because of his political opinions, contrary to article 26 of the Covenant.
7. 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 as found by the Committee disclose violations of articles 9, paragraphs 1 and 3, 12, 19, paragraph 1, 25 (a) and 26 of the Covenant.
8. Pursuant to article 2 of the Covenant, the State party is under an obligation to provide Mr. Bwalya with an appropriate remedy. The Committee urges the State party to grant appropriate compensation to the author. The State party is under an obligation to ensure that similar violations do not occur in the future.
9. The Committee would wish to receive information, within 90 days, on any relevant measures taken by the State party in respect of the Committee's views.
[Done in English, French and Spanish, the English text being the original version.]
Notes
a/ Views on communication No. 195/1985 (Delgado Páez v. Colombia), adopted on 12 July 1990, paras. 5.5 and 5.6.
J. Communication No. 317/1988, Howard Martin v. Jamaica
(views adopted on 24 March 1993, forty-seventh session)*
Submitted by: Howard Martin (represented by counsel)
Alleged victim: The author
State party: Jamaica
Date of communication: 5 August 1988
Date of decision on admissibility: 15 March 1990
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 24 March 1993,
Having concluded its consideration of communication No. 317/1988, submitted to the Human Rights Committee on behalf of Mr. Howard Martin 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 (initial submission dated 5 August 1988 and subsequent correspondence) is Howard Martin, a Jamaican citizen currently awaiting executing at St. Catherine District Prison, Jamaica. He claims to be the victim of a violation of articles 6, 7, 10 and 14 of the International Covenant on Civil and Political Rights by Jamaica. He is represented by counsel.
Facts as submitted
2.1 The author states that he was sentenced to death on 17 February 1981 in the Home Circuit Court of Kingston for the murder, on 22 September 1979, of one Rupert Wisdom. The Jamaican Court of Appeal dismissed his appeal on 11 November 1981. In February 1988, a warrant for his execution was issued. After 17 days, however, he was granted a last minute stay, because a petition for special leave to appeal to the Judicial Committee of the Privy Council was being prepared on his behalf. On 11 July 1988, the author's petition for special leave to appeal was dismissed by the Judicial Committee of the Privy Council. The Judicial Committee of the Privy Council did, however, express grave concern about the delays in the case, and stated "... that attention should be given to devising procedures which will eliminate distressful delays of this character".
________________________
* Pursuant to rule 85 of the Committee's rules of procedure, Committee member Mr. Laurel Francis did not take part in the adoption of the Committee's views.
2.2 As to the facts, the author states that on the evening of 22 September 1979, he had been engaged in a heated discussion with a female acquaintance outside the gate of her home. Mr. Wisdom, who lived at the same premises, approached them, told the author to leave and allegedly struck him on the forehead with a bottle. The author then grabbed a piece of steel lying on the ground and turned to the alleged attacker, who had been following him. In the fight that ensued, Mr. Wisdom was fatally injured.
2.3 As to the trial proceedings, the author submits that during the preliminary inquiry, the evidence given by two eye-witnesses was contradictory. Only one of them testified during the trial, and the author alleges that her evidence was at odds with her previous statement. When the author's representative questioned her, he was interrupted by the trial judge, who ruled out further cross-examination on the matter. The author further submits that this witness was a close friend of the police officer in charge of the investigations of his case and that she was accompanied by this police officer to the court each day.
Complaint
3.1 The author claims that his trial was unfair, and that the trial judge erred in not directing the jury on the issue of involuntary manslaughter. He argues that it was clear from the evidence in the case that it was more than doubtful whether he had any intent to kill or cause grievous bodily harm; even though his attorney had not relied on this defence argument, the Judge was under a duty to address it. Further, he claims that the Judge erred in law while summing up the case for the jury, inter alia with respect to the issues of self-defence, provocation and the author's intent.
3.2 Referring to the delays in the execution of his death sentence, the author contends that they are contrary to due process of law and to Section 14, paragraph 1, of the Jamaican Constitution, which stipulates that an accused person's trial and the execution of the sentence handed down should take place within a reasonable time. Furthermore, he alleges that the delay in the execution of the sentence is contrary to Section 17, paragraph 1, of the Constitution, which lays down that no person shall be subjected to torture or to degrading punishment or treatment. He argues that the length of time spent on death row and the permanent anxiety he lives in constitutes such degrading treatment.
3.3 The author further claims that his 17 days' stay in the death cell, after a warrant for his execution was issued and before the last minute reprieve, caused him unnecessary mental and physical suffering, in violation of article 7 of the Covenant.
State party's observations and the author's comments thereon
4. In its submission under rule 91, dated 1 December 1988, the State party argues that the communication is inadmissible pursuant to article 5, paragraph 2 (b), of the Optional Protocol, because the author has failed to exhaust domestic remedies available to him under Section 25 of the Constitution.
5. By a letter dated 9 May 1989, author's counsel contests that the procedure referred to by the State party is an effective domestic remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. He argues that the State party does not provide legal aid with respect to a constitutional motion before the Supreme Court of Jamaica. Accordingly, the author cannot avail himself of the remedy indicated by the State party, since he cannot afford to instruct a lawyer. Counsel further observes that the Jamaica Council for Human Rights has tried in vain to solicit the services of a lawyer to prepare, on a no-fee basis, a constitutional motion on behalf of the author.
Committee's decision on admissibility
6.1 At its thirty-eighth session, the Committee considered the admissibility of the communication. It noted the State party's contention that the communication was inadmissible because of the author's failure to pursue constitutional remedies available to him. In this connection, the Committee observed, taking into account the absence of legal aid for filing a constitutional motion and the unwillingness of Jamaican counsel to act in this regard without remuneration, that recourse to the Supreme Court under Section 25 of the Jamaican Constitution was not a remedy available to the author within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.
6.2 The Committee further considered that part of the author's allegations concerning irregularities in the court proceedings were inadmissible under article 3 of the Optional Protocol, since it is, in principle, beyond the competence of the Committee to review specific instructions to the jury in a trial by jury.
6.3 On 15 March 1990, the Committee declared the communication admissible in so far as it might raise issues under articles 7 and 14, paragraphs 3 (c) and 5 of the Covenant.
Review of admissibility
7. The State party, in its submissions dated 11 February 1991 and 14 January 1992, challenges the Committee's admissibility decision and maintains that the communication is inadmissible. It argues that the author has constitutional remedies he may still pursue. It submits that, in the light of cases recently decided by the Supreme (Constitutional) Court, it is clear that this Court has jurisdiction to allow applications for redress with regard to cases in which criminal appeals have been dismissed. It further argues that the absence of legal aid does not relieve a person of the obligation to exhaust domestic remedies. It submits that nothing in the Covenant imposes upon a State party the duty to provide legal aid other than to an accused in the determination of a criminal charge against him.
8. In his comments on the State party's request for review of the admissibility decision, author's counsel argues that, while it is in theory possible for the author to file a constitutional motion, in practice the absence of legal aid and the unwillingness of lawyers to provide legal assistance in these matters without remuneration renders this right illusory.
9. The Committee has taken note of the arguments submitted to it by the State party and reiterates that domestic remedies within the meaning of the Optional Protocol must be both available and effective. The Committee considers that, in the absence of legal aid, a constitutional motion does not, in the specific circumstances of the instant case, constitute an available remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol, which the author should still exhaust. a/ There is therefore no reason to revise the Committee's earlier decision on admissibility of 15 March 1990.
Examination of the merits
10. In its submission, dated 14 January 1992, the State party denies that the Covenant was violated in the author's case. It submits that the delay in carrying out the death sentence against the author resulted from the author's exercise of his right to appeal against conviction and sentence to the Judicial Committee of the Privy Council. As regards the alleged violation of article 14, paragraph 5, of the Covenant, the State party argues that the author has appealed his conviction to the Court of Appeal and the Judicial Committee of the Privy Council, and thus has not been denied the right to have his conviction and sentence reviewed by a higher tribunal.
11. In his comments on the State party's submission, author's counsel argues that the delay in carrying out the death sentence cannot be attributed to the exercise by the author of the right to further appeal his conviction. He submits that the author was being held on death row for over six years before a warrant for his execution was issued, and that an appeal to the Privy Council was only lodged on his behalf on 25 May 1988, after he had obtained a stay of execution in February 1988.
12.1 The Committee has considered the communication in the light of all the information made available to it by the parties, as required under article 5, paragraph 1, of the Optional Protocol.
12.2 As to the author's allegation that his prolonged stay on death row constitutes cruel, inhuman or degrading treatment, the Committee refers to its jurisprudence in communications Nos. 270 and 271/1988 b/ and reiterates that prolonged judicial proceedings do not per se constitute cruel, inhuman or degrading treatment, even if they may be a source of mental strain and tension for detained persons. In the instant case, the delay between the judgement of the Court of Appeal and the dismissal of the author's petition to the Judicial Committee of the Privy Council has been disturbingly long. However, the evidence before the Committee indicates that the Court of Appeal promptly produced its written judgement and that the ensuing delay in petitioning the Judicial Committee was largely attributable to the author. In the circumstances of the present case, the Committee affirms its jurisprudence that even prolonged periods of detention under a severe custodial regime on death row cannot generally be considered to constitute cruel, inhuman or degrading treatment if the convicted person is merely availing himself of appellate remedies.
12.3 The author further alleges that the delay of 17 days between the issuing of the warrant for his execution and its stay, during which time he was detained in a special cell, constitutes a violation of article 7 of the Covenant. The Committee observes that, after the warrant had been issued, a stay of execution was requested, on the grounds that counsel would prepare a petition for leave to appeal to the Judicial Committee of the Privy Council. This stay of execution was subsequently granted. Nothing in the information before the Committee indicates that the applicable procedures were not duly followed, or that the author continued to be detained in the special cell after the stay of execution had been granted. The Committee therefore finds that the facts before it do not disclose a violation of article 7 of the Covenant.
12.4 The author also alleges that his trial suffered from undue delay and that he was denied the right to have his conviction and sentence reviewed by a higher tribunal. The Committee observes that the author was convicted and sentenced by the Circuit Court of Kingston on 17 February 1981 and that his appeal was dismissed by the Court of Appeal on 11 November 1981. The Committee notes that the subsequent delay in obtaining a hearing before the Judicial Committee of the Privy Council, which dismissed special leave to appeal on 11 July 1988, is primarily attributable to the author, who did not file his petition to the Judicial Committee until after a warrant for his execution had been issued in 1988, six and a half years after the Court of Appeal's judgement. The Committee therefore concludes that the facts before it do not disclose a violation of article 14, paragraphs 3 (c) and 5, of the Covenant.
13. 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 do not disclose a violation of any of the provisions of the International Covenant on Civil and Political Rights.
[Done in English, French and Spanish, the English text being the original version.]
Notes
a/ See also the Committee's views in communications Nos. 230/1987 (Raphael Henry v. Jamaica) and 283/1988 (Aston Little v. Jamaica), adopted on 1 November 1991, paras. 7.1 et seq.
b/ Randolph Barrett and Clyde Sutcliffe v. Jamaica, views adopted on 30 March 1992.
K. Communication No. 320/1988, Victor Francis v. Jamaica
(views adopted on 24 March 1993, forty-seventh
session)*
Submitted by: Victor Francis (represented by counsel)
Alleged victim: The author
State party: Jamaica
Date of communication: 10 July 1988
Date of decision on admissibility: 4 July 1991
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 24 March 1993,
Having concluded its consideration of communication No. 320/1988, submitted to the Human Rights Committee by Victor Francis 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 (initial submission dated 10 July 1988 and subsequent submissions) is Victor Francis, a Jamaican citizen currently awaiting execution at St. Catherine District Prison, Jamaica. He claims to be the victim of a violation of articles 7, 10 and 14, paragraphs 3 (c) and 5, of the International Covenant on Civil and Political Rights by Jamaica. He is represented by counsel.
Facts as submitted
2.1 The author was charged with the murder, on 6 February 1981, of a child, Kimberley Ann Longmore. The prosecution's contention was that the author, together with another unidentified man, killed the child by shooting at random into a "board house". At the trial, the child's mother testified that her child was shot while she and her other children were hiding from the gunfire that had erupted outside her house. She added that she could not see the men who were firing, since, at the time in question, the street lights were off and so were the lights of other houses in the neighbourhood.
2.2 Two prosecution witnesses identified the author as one of the men they saw at the time of the shooting. The first, one Janet Gayle, testified that she could observe the two men firing through a fence. The second, one
________________________
* Pursuant to rule 85 of the Committee's rules of procedure, Committee member Mr. Laurel Francis did not take part in the adoption of the Committee's views.
Robert Bailey, asserted that both men were carrying "long guns" and that the lights in the area were on at the time of the shooting. The author claimed to be innocent and contended that, at the relevant time, he was at his mother's home, asleep with his wife. His wife reportedly confirmed his alibi.
2.3 On 20 January 1982, the author was found guilty as charged and sentenced to death. On 4 February 1983, the Court of Appeal of Jamaica dismissed his appeal. The Court gave an oral judgement, but, in spite of numerous requests, did not provide written reasons for its decision. Owing to the absence of the Court of Appeal's written judgement, the Judicial Committee of the Privy Council dismissed the author's petition for special leave to appeal on 20 February 1987.
Complaint
3.1 The author alleges that he was denied a fair trial in that several irregularities occurred during its conduct. He claims that the evidence of the witnesses against him was contradictory and that there were discrepancies between their testimony during the trial and their original statements, especially as to whether street lights were on in the area during the night of the murder. He further submits that defence counsel requested an adjournment of the trial in order to obtain evidence about the lighting conditions at the time the murder took place. The judge allegedly denied his request. In this context, it is also pointed out that no evidence was produced by the prosecution to establish that the author owned a gun, nor was a ballistic report presented to establish a causal link between any gun he may have been carrying and the child's death.
3.2 The author claims that the Court of Appeal's failure to issue a written judgement violates his right under article 14, paragraph 3 (c), to be tried without undue delay and his right under article 14, paragraph 5, to have his conviction and sentence reviewed. He indicates that the absence of a written judgement of the Court of Appeal in his case resulted in the dismissal of his petition for special leave to appeal by the Judicial Committee of the Privy Council. More specifically, he explains that the dismissal of his petition was due, in particular, to his failure to meet the requirements of the Judicial Committee's rules of procedure, namely, to explain the grounds on which he was seeking special leave to appeal, and to provide the Judicial Committee with copies of the decisions of lower courts.
3.3 The author further submits that his representative invited the Judicial Committee of the Privy Council (a) to allow the petition on the ground that the failure of the Court of Appeal to provide a written judgement in a capital case was such a violation of the principles of natural justice that leave to appeal should be granted, and (b) to remit the case to Jamaica with a direction, under Section 10 of the Judicial Committee Act 1844, that the Court of Appeal be required to provide written reasons. According to the author, the failure of the Judicial Committee of the Privy Council to adopt one of the above courses of action left him with no available legal remedy.
3.4 The author finally alleges that he has been subjected to violations of articles 7 and 10 of the Covenant. He claims that on the night of 9 July 1988, twenty to twenty-five soldiers and over twenty warders searched a block of St. Catherine District Prison known as the New Hall. After concluding the search, they returned to Wards C and D of the block, where they allegedly brutalized and severely beat the convicts, including the author, after the latter had been pointed out by the warders. The author adds that one soldier entered his cell, beat him badly on the head and pushed him with a bayonet. Allegedly, three warders participated in this assault. The soldiers are further said to have emptied a urine bucket over the author's head, thrown his food and water on the floor and his mattress out of the cell. Many inmates reportedly suffered from similar maltreatment on the same night. The author further alleges that the events were witnessed by two Assistant Superintendents of the prison and one overseer, who apparently did not make any attempt to intervene.
3.5 With regard to the requirement of exhaustion of domestic remedies, the author submits that, following his maltreatment at St. Catherine District Prison, he wrote about the incident to the Senior Parliamentary Ombudsman. On 29 July and 25 November 1988, he received a reply from the latter's office, which informed him that the matter had been referred to the competent authorities for investigation, and that as soon as the result became known he would be so notified. Since then he has not received any notice. The author further wrote to the Minister of Justice about the same matter, but did not receive any reply.
State party's observations and author's comments
4. The State party contends that, with regard to the author's allegations that, on 9 July 1988, he was subjected to inhuman and degrading treatment at St. Catherine District Prison, the communication is inadmissible for non-exhaustion of domestic remedies, since the author has failed to pursue constitutional remedies available to him. The State party submits that Section 17 of the Jamaican Constitution guarantees protection from cruel, inhuman and degrading treatment, and that pursuant to Section 25, anyone who alleges that a right protected by the Constitution has been, is being or is likely to be contravened in relation to him may apply to the Supreme (Constitutional) Court for redress.
5. In his reply to the State party's submission, the author states that a constitutional motion is not, in the circumstances, an effective remedy available to him, within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. He adds that the State party does not provide legal aid with respect to filing a constitutional motion before the Supreme (Constitutional) Court of Jamaica, and that, as a result, he is effectively barred from exercising his constitutional rights, since he cannot afford to retain counsel.
Committee's decision on admissibility
6.1 At its forty-second session, the Committee considered the admissibility of the communication. It noted that part of the author's allegations related to the conduct of the trial by the trial judge and the evaluation of corroborative evidence. Since it is generally for the appellate courts of States parties to the Covenant and not for the Committee to evaluate the facts and the evidence placed before the domestic courts, the Committee declared this part of the communication inadmissible under article 3 of the Optional Protocol.
6.2 The Committee concluded, in the absence of any information provided by the State party, that the author's other allegations regarding a violation of article 14 were admissible.
6.3 As to the author's allegations under articles 7 and 10 of the Covenant, the Committee noted the State party's contention that this part of the communication was inadmissible because of the author's failure to pursue the constitutional remedies available to him. It also noted the author's contention that the remedy indicated by the State party was not a remedy available to him because of his lack of financial means and the unavailability of legal aid for purposes of filing a constitutional motion to the Supreme (Constitutional) Court of Jamaica. The Committee further considered that the author had demonstrated that he had made reasonable efforts through administrative demarches to seek redress in respect of the ill-treatment allegedly suffered while in detention. The Committee therefore found that the requirements of article 5, paragraph 2 (b), of the Optional Protocol had been met.
6.4 On 4 July 1991, the Committee therefore declared the communication admissible in so far as it might raise issues under articles 7, 10 and 14 of the Covenant.
Review of admissibility
7. In its submission dated 16 January 1992, the State party challenges the Committee's admissibility decision. It argues that the communication is inadmissible, since the author failed to exhaust constitutional remedies available to him. It submits that, in the light of cases recently decided by the Supreme Court, it is clear that the Supreme Court has jurisdiction to allow applications for redress with regard to cases in which criminal appeals have been dismissed.
8. In his comments on the State party's submission, author's counsel argues that, while it is in theory possible for the author to file a constitutional motion, in practice this right is illusory in the light of the absence of legal aid.
9.1 The Committee has taken note of the State party's arguments on admissibility formulated after the Committee's decision declaring the communication admissible, especially in respect of the availability of constitutional remedies which the author may still pursue. It recalls that the Supreme Court of Jamaica has, in recent cases, allowed applications for constitutional redress in respect of breaches of fundamental rights, after the criminal appeals in these cases had been dismissed.
9.2 However, the Committee also recalls that by submission of 10 October 1991 concerning another case, a/ the State party indicated that legal aid is not provided for constitutional motions, and that it has no obligation under the Covenant to make legal aid available in respect of such motions, as they do not involve the determination of a criminal charge, as required under article 14, paragraph 3 (d), of the Covenant. In the view of the Committee, this supports the finding, made in the decision on admissibility, that a constitutional motion is not an available remedy for an author who has no means of his own to pursue it. In this context, the Committee observes that the author does not claim that he is absolved from pursuing constitutional remedies because of his indigence; rather it is the State party's unwillingness or inability to provide legal aid for the purpose that renders the remedy one that need not be pursued for purposes of the Optional Protocol. Accordingly, there is no reason to revise the decision on admissibility of 4 July 1991.
Examination of the merits
10. The State party argues that it is not clear to which articles and paragraphs of the Covenant the allegations of the author refer. It therefore refrains from submitting comments on the substance of the allegations.
11. In his comments on the State party's submission, author's counsel submits that it is clear from earlier submissions and the Committee's admissibility decision which matters give rise to the author's complaint under article 14. He further states that the allegations of ill-treatment relate to article 10, paragraph 1, juncto article 7 of the Covenant.
12.1 The Committee has considered the communication in the light of all the information made available to it by the parties, as required under article 5, paragraph 1, of the Optional Protocol. The Committee notes with concern that the State party has not addressed the author's specific claims under articles 7, 10 and 14 of the Covenant. Article 4, paragraph 2, of the Optional Protocol enjoins the State party to investigate in good faith all the allegations made against it, and to make available to the Committee all the information at its disposal. In the circumstances due weight must be given to the author's allegations, to the extent that they have been substantiated.
12.2 The author claims that the failure of the Court of Appeal to issue a written judgement violates his right under article 14, paragraph 3 (c), to be tried without undue delay, and his right under article 14, paragraph 5, to have his conviction and sentence reviewed. The Committee recalls that article 14, paragraph 3 (c), and article 14, paragraph 5, are to be read together, so that the right to review of conviction and sentence must be made available without delay. b/ In this connection, the Committee refers to its views concerning communications Nos. 230/1987 and 283/1988, c/ where it held that under article 14, paragraph 5, a convicted person is entitled to have, within reasonable time, access to written judgements, duly reasoned, for all instances of appeal in order to enjoy the effective exercise of the right to have conviction and sentence reviewed by a higher tribunal according to law. The Committee is of the opinion that the failure of the Court of Appeal to issue a written judgement, more than nine years after the dismissal of the appeal, constitutes a violation of article 14, paragraphs 3 (c) and 5.
12.3 The Committee is of the opinion that the imposition of a sentence of death upon conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is possible, a violation of article 6 of the Covenant. As the Committee noted in its General Comment 6 (16), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that "the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review of conviction and sentence by a higher tribunal". d/ In the present case, the final sentence of death was passed without there having been any possibility of appeal. Accordingly, there has also been a violation of article 6.
12.4 With regard to the author's allegation of ill-treatment in detention, the Committee notes that where the State party has not replied to the Committee's request for clarifications, due weight must be given to the author's allegations. In this context, the Committee observes that the author has made specific allegations, which have not been contested by the State party, that, on 9 July 1988, he was assaulted by soldiers and warders, who beat him, pushed him with a bayonet, emptied a urine bucket over his head, threw his food and water on the floor and his mattress out of the cell. In the Committee's view, this amounts to degrading treatment within the meaning of article 7 and also entails a violation of article 10, paragraph 1.
13. 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 7 and 10, paragraph 1, article 14, paragraphs 3 (c) and 5, and consequently article 6, of the International Covenant on Civil and Political Rights.
14. In capital punishment cases, the obligation of States parties to observe rigorously all the guarantees for a fair trial set out in article 14 of the Covenant admits of no exception. The failure to provide a right of appeal in accordance with article 14, paragraph 5, means that Mr. Francis did not receive a fair trial within the meaning of the Covenant. He is entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective remedy. The Committee is of the view that in the circumstances of the case, this entails his release. As regards the violation of articles 7 and 10, of which Mr. Francis also is a victim, he is entitled to a remedy, including appropriate compensation. The State party is under an obligation to ensure that similar violations do not occur in the future.
15. The Committee would wish to receive information, within ninety days, on any relevant measures taken by the State party in respect of the Committee's views.
[Done in English, French and Spanish, the English text being the original version.]
Notes
a/ Communication No. 283/1988 (Aston Little v. Jamaica), views adopted on 1 November 1991.
b/ See the Committee's views concerning communications Nos. 210/1986 and 225/1987 (Earl Pratt and Ivan Morgan v. Jamaica), adopted on 6 April 1989, paras. 13.3 to 13.5.
c/ Raphael Henry v. Jamaica and Aston Little v. Jamaica, views adopted on 1 November 1991.
d/ See CCPR/C.21/Rev.1, General Comment 6 [16], para. 7.
L. Communication No. 326/1988, Henry Kalenga v. Zambia
(views adopted on 27 July 1993, forty-eighth session)
Submitted by: Henry Kalenga
Victim: The author
State party: Zambia
Date of communication: 18 November 1988 (initial submission)
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 27 July 1993,
Having concluded its consideration of communication No. 326/1988, submitted to the Human Rights Committee by Mr. Henry Kalenga 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 and the State party,
Adopts its views under article 5, paragraph 4, of the Optional Protocol.
1. The author of the communication is Henry Kalenga, a Zambian citizen currently residing in Kitwe, Zambia. He claims to be a victim of violations by Zambia of articles 9, 14 and 19 of the International Covenant on Civil and Political Rights.
Facts as submitted
2.1 On 11 February 1986, the author was arrested by the police of the city of Masala; he was forced to spend the night in a police lock-up. On 12 February 1986, a statement was taken from him. The following day, a police detention order was issued against him pursuant to Regulation 33 (6) of the Preservation of Public Security Act. This order was revoked on 27 February 1986 but immediately replaced by a Presidential detention order, issued under Regulation 33 (1) of the said Act.
2.2 The author notes that the Preservation of Public Security Regulations allow the President of Zambia to authorize the administrative detention of persons accused of political offences for an indefinite period of time, "for purposes of preserving public security". The author was informed of the charges brought against him on 13 March 1986, that is over one month after his arrest. He was subsequently kept in police detention, on charges of (a) being one of the founding members and having sought to disseminate the views of a political organization, the so-called People's Redemption Organization - an organization considered illegal under Zambia's (then) one-party Constitution - and (b) of preparing subversive activities aimed at overthrowing the regime of (then) President Kenneth Kaunda. The author was released on 3 November 1989, following a Presidential order.
2.3 After his release, the author was placed under surveillance by the Zambian authorities. The latter allegedly denied him his passport, thereby depriving him of his freedom of movement. Moreover, he claims that as a former political prisoner, he was subjected to harassment and intimidation by the authorities, which also reportedly denied him access to governmental and private financial institutions.
Complaint
3.1 Mr. Kalenga contends that at the time of his arrest, he was not engaged in any political activities aimed at undermining the government. Instead, he had been promoting campaigns protesting the government's national education, military and economic policies. He adds that the subversive activities he was accused of amounted to no more than burning the card affiliating him with President Kaunda's party, UNIP. He claims that, as a prisoner of conscience, he was subjected to unlawful detention, because he was formally informed about the reasons for his detention more than a month following his arrest, contrary to the Regulations mentioned in paragraph 2.1 above and article 27, paragraph 1 (a), of the Zambian Constitution. The latter provision stipulates that the grounds of detention must be supplied within fourteen days following the arrest. In this connection, the author asserts that the charges against him had no basis in fact at the time of his arrest and that they were "fabricated" by the police in order to justify his detention.
3.2 The author further affirms that throughout his detention, he was not brought before a judge or judicial officer to establish his guilt. This allegedly was attributable to the fact that under Zambian legislation regulating public security issues, individuals may be detained indefinitely without being formally charged or tried.
3.3 The author contends that he was subjected to inhuman and degrading treatment during his detention. He claims that he was frequently deprived of food, of access to recreational activities as well as medical assistance, despite the continuing deterioration of his state of health. Moreover, he claims to have been subjected to various forms of "psychological torture". This treatment is said to be prohibited under articles 17 and 25 (2) and (3) of the Zambian Constitution.
3.4 With respect to the requirement of exhaustion of domestic remedies, the author states that he instituted proceedings against the State during his detention. Initially, he filed an application for writ of habeas corpus with the High Court of Zambia. On 23 June 1986, the High Court dismissed his application, on the ground that the author's detention was not in violation of domestic laws. The author then filed another request for writ of habeas corpus with the High Court of Justice, in which he (a) challenged the legality of his detention, (b) complained about the inhuman and degrading treatment suffered during detention, and (c) requested compensation and damages. On 14 April 1989, the application was dismissed by the Court, which declared itself incompetent to deal with the matter on the basis of res judicata. The author then petitioned a special tribunal established under the Preservation of Public Security Regulations; this tribunal has the mandate to review periodically the cases of political prisoners and is authorized to recommend either continued detention or release. The tribunal sits, however, in camera, and the President is not obliged to implement its recommendations, made confidentially. On 29 and 30 December 1988, the author was heard by this tribunal. As the State prosecutor could not adduce evidence in support of the charges against the author, the tribunal recommended Mr. Kalenga's immediate release. None the less, release did not occur until 10 months later, as President Kaunda did not follow up on the recommendation.
Committee's decision on admissibility and the parties' submissions on the merits
4.1 During its firty-third session in October 1991, the Committee considered the admissibility of the communication. It noted with concern the absence of any State party cooperation on the matter, as the State party had failed to make submissions on the admissibility of the case in spite of two reminders. On the basis of the information before it, it concluded that the author had met the requirements under article 5, paragraph 2 (b), of the Optional Protocol, and that he had sufficiently substantiated his allegations, for purposes of admissibility.
4.2 On 15 October 1991, the Committee declared the communication admissible in as much as it appeared to raise issues under articles 7, 9, 10, 12 and 19 of the Covenant.
5.1 In a submission, dated 28 January 1992, the State party indicates that "Mr. Henry Kalenga has been released from custody and is a free person now". No information about the substance of the author's allegations, nor copies of his indictment or of any judicial orders concerning his detention and the alleged legality thereof, have been provided by the State party. The State party did not reply to a reminder addressed to it in February 1993.
5.2 In an undated letter received on 24 March 1992, the author requests the Committee to continue consideration of his case. He adds that he continues to suffer from stomach ulcers and a deplorable financial situation as a result of his detention; he further contends that the change in Government, in the spring of 1992, has not changed the authorities' attitude towards him.
Examination of the merits
6.1 The Committee has considered the communication in the light of all the information provided by the parties. It notes with concern that, with the exception of a brief note informing the Committee about the author's release, a fact known to the Committee by the time of the adoption of the admissibility decision, the State party has failed to cooperate on the matter under consideration. It is implicit in article 4, paragraph 2, of the Optional Protocol that a State party investigate in good faith the allegations brought against it, and that it provide the Committee with all the information at its disposal, including all available judicial documents. The State party has failed to provide the Committee with any such information. In the circumstances, due weight must be given to the author's allegations, to the extent that they have been substantiated.
6.2 In respect of issues under article 19, the Committee is of the opinion that the uncontested response of the Zambian authorities to the author's attempts to express his opinions freely and to disseminate the tenets of the People's Redemption Organization constitute a violation of his rights under article 19 of the Covenant.
6.3 The Committee is of the opinion that the author's right, under article 9, paragraph 2, to be promptly informed about the reasons for his arrest and of the charges against him, has been violated, as it took the State party authorities almost one month to so inform him. Similarly, the Committee finds a violation of article 9, paragraph 3, as the material before it reveals that the author was not brought promptly before a judge or other officer authorized by law to exercise judicial power. On the other hand, on the basis of the chronology of judicial proceedings provided by the author himself, the Committee cannot conclude that Mr. Kalenga was denied his right, under article 9, paragraph 4, to take proceedings before a court of law.
6.4 The author has claimed, and the State party has not denied, that he continues to suffer restrictions on his freedom of movement, and that the Zambian authorities have denied him his passport. This, in the Committee's opinion, amounts to a violation of article 12, paragraph 1, of the Covenant.
6.5 As to Mr. Kalenga's claim of inhuman and degrading treatment in detention, the Committee notes that the author has provided information in substantiation of his allegation, in particular concerning the denial of recreational facilities, the occasional deprivation of food and failure to provide medical assistance when needed. Although the author has not shown that such treatment was cruel, inhuman and degrading within the meaning of article 7, the Committee considers that the State party has violated the author's right under article 10, paragraph 1, to be treated with humanity and respect for the inherent dignity of his person.
7. 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 as found by the Committee disclose violations of articles 9, paragraphs 2 and 3; 10, paragraph 1; 12, paragraph 1; and 19, of the Covenant.
8. Pursuant to article 2 of the Covenant, the State party is under an obligation to provide Mr. Kalenga with an appropriate remedy. The Committee urges the State party to grant appropriate compensation to the author; the State party is under an obligation to ensure that similar violations do not occur in the future.
9. The Committee would wish to receive information, within ninety days, on any relevant measures taken by the State party in respect of the Committee's views.
[Done in English, French and Spanish, the English text being the original version.]
M. Communication No. 334/1988, Michael Bailey v. Jamaica
(views adopted on 31 March 1993, forty-seventh
session)*
Submitted by: Michael Bailey (represented by counsel)
Alleged victim: The author
State party: Jamaica
Date of communication: 22 February 1988 (initial submission)
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 31 March 1993,
Having concluded its consideration of communication No. 334/1988, submitted to the Human Rights Committee by Mr. Michael Bailey 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 Michael Bailey, a Jamaican citizen born in September 1963, currently awaiting execution at St. Catherine District Prison, Jamaica. He claims to be a victim of violations by Jamaica of articles 7 and 14, paragraph 1, of the International Covenant on Civil and Political Rights. He is represented by counsel.
Facts as submitted
2.1 Michael Bailey was arrested on 27 August 1984 and charged with the murder, on 21 June 1984, of Maxine Gordon, a 19-year-old woman. He was tried in the Home Circuit Court of Kingston, found guilty as charged and sentenced to death on 30 July 1985. The Court of Appeal dismissed his appeal on 30 July 1986, issuing its written judgement on 13 November 1986. The Judicial Committee of the Privy Council denied special leave to appeal on 24 March 1988. With this, it is submitted, available and effective domestic remedies have been exhausted.
2.2 During the trial, the prosecution relied primarily upon a written deposition made shortly after the murder by Pauline Ellis, the mother of Maxine Gordon; Mrs. Ellis herself died before the beginning of the trial, but the judge admitted her written deposition as evidence, according to which Maxine and her mother had been in the latter's bedroom at approximately 8 p.m. on 21 June 1984. Upon hearing noises, Maxine looked out of the window and walked out on the verandah of the house. Mrs. Ellis then heard two shots, upon which
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* Pursuant to rule 85 of the Committee's rules of procedure, Committee member Mr. Laurel Francis did not take part in the adoption of the Committee's views.
her daughter rushed back into the bedroom and hid beneath the bed. Michael Bailey followed her, armed with a gun, broke into the bedroom and fired several shots under the bed, despite Mrs. Ellis' attempts to intervene.
2.3 The prosecution further contended that upon his arrest and after being cautioned, the author admitted having shot Maxine Gordon, invoking as motive a long-standing argument with her. During the trial, in an unsworn statement from the dock, the author denied any involvement in the crime; he affirmed that at the time in question he had been at home with his brother and sister. In this connection, he submits that when cross-examined by defence counsel during the trial, the arresting officer admitted that the diary in which he had recorded the author's alleged confession was not in his possession anymore, and that he could not remember what he had done with it.
Complaint
3.1 The author contends that he was denied a fair trial, in violation of article 14, paragraph 1, of the Covenant; he explains that after the summing up of the case by the judge and after consideration of the verdict by the jury, the foreman of the jury told the judge that no unanimous verdict had been reached and that he wished to raise a particular issue. The judge inquired as to whether this concerned an issue of fact or of law; as it referred to a matter extraneous to the conduct of the case, the judge refused to allow the question and directed the jury to retire and to reconsider their verdict without further delay. After another 45 minutes, the jury returned a guilty verdict.
3.2 It is submitted that the judge should have allowed the foreman's question and that he failed to properly instruct the jury. The author further contends that the judge exerted undue pressure on the jurors to return a verdict without delay, which is deemed to be contrary to the principles laid down by the Court of Appeal in the case of McKenna. In this context, counsel submits that in the circumstances, it was particularly important to let the jury consider its verdict freely and carefully, as the evidence against the author was based primarily upon the deposition by a witness whose veracity could not be tested by cross-examination.
3.3 The author affirms, without giving further details, that his legal representation was inadequate, that his court-appointed lawyer was inexperienced and that the judge unjustly objected to several questions asked and points raised by this lawyer.
3.4 The author further claims to have been beaten and ill-treated during detention on death row, in violation of article 7 of the Covenant. He states that, on 29 May 1990, several prison warders took him out of his cell; two warders, whom he names, began to beat him all over his body with batons, an iron pipe and with clubs, in the presence of an overseer. When he implored the overseer to stop the warders, the overseer allegedly told him to keep quiet. The author complains that he suffered bruises, slashes and cuts, and that he was so severely injured that he had to crawl back into his cell. In a letter dated 14 March 1991, which was confirmed by counsel on 25 September 1991, he notes that in spite of injuries to his head and his hands, he has not been seen by a prison doctor, in spite of repeated requests. He contends that it would not be possible now to obtain a report on his injuries from the prison's Pharmaceutical Department.
3.5 Concerning the requirement of exhaustion of domestic remedies, the author submits, with respect to his claim under article 7, that he wrote to the Parliamentary Ombudsman, asking that someone visit him in the prison to take a statement from him. Following this request, he was allegedly threatened by prison warders and now has to fear for his life.
3.6 As to the claims under article 14 of the Covenant, the author contends that a constitutional motion would not be an effective remedy within the meaning of the Optional Protocol. He notes that he cannot afford to privately retain counsel for the purpose and adds that the State party does not provide legal aid for constitutional motions. Counsel in London observes that there is no tradition in Jamaica for lawyers to offer free legal services and points out that there has been only one instance in which Jamaican lawyers agreed to act on a pro bono basis for purposes of a constitutional motion, i.e. in the cases of Pratt and Morgan. a/ Even if counsel in London were to accept to appear on such a basis on the author's behalf, he would have no locus standi before the Constitutional Court.
State party's comments and observations on admissibility
4.1 In a submission dated 7 July 1989, the State party contends that the communication is inadmissible on the grounds of the author's failure to petition the Judicial Committee of the Privy Council for special leave to appeal. Although the author's petition to the Judicial Committee had been dismissed on 24 March 1988, no further comments were received from the State party in this respect prior to the consideration of the admissibility of the communication.
4.2 The State party did not provide information in respect of the admissibility of the author's claims under article 7, in spite of two specific requests addressed to it on 8 May and 20 August 1991.
Committee's decision on admissibility
5.1 During its forty-third session, the Committee considered the admissibility of the communication. It noted that the State party had failed to provide detailed information in respect of the admissibility of the author's claims under articles 7 and 14 of the Covenant and decided, on the basis of the information before it, that it was not precluded from considering the communication under article 5, paragraph 2 (b), of the Optional Protocol.
5.2 The Committee further noted that part of the author's allegations concerned the judge's conduct of the trial. It reaffirmed its jurisprudence that it is not in principle for the Committee to review specific instructions to the jury by the judge or the judge's reluctance to entertain a question posed by the foreman of the jury, unless it can be ascertained that the instructions to the jury or the judge's conduct are clearly arbitrary or amount to a denial of justice. As the Committee lacked evidence that the judge's instructions suffered from such defects, it concluded that the author's claims under article 14 of the Covenant were inadmissible as incompatible with the provisions of the Covenant, pursuant to article 3 of the Optional Protocol.
5.3 On 18 October 1991, the Committee declared the communication admissible in so far as it appeared to raise issues under articles 7 and 10 of the Covenant.
State party's objections to the decision on admissibility and counsel's further comments
6.1 In a submission dated 30 April 1992, the State party contends that the communication remains inadmissible because the author has failed to avail himself of constitutional remedies. Thus, Section 17, paragraph 1, of the Constitution prohibits inhuman and degrading treatment, and where a breach of this right is alleged, Section 25 of the Constitution provides for an application to the Supreme (Constitutional) Court for redress.
6.2 In addition, the State party contends, the author would have other remedies in respect of ill-treatment by prison officials. Apart from complaining to the Ombudsman, he could complain to the Department of Corrections. Moreover, he could file an action for damages for assault in respect of the alleged breaches.
6.3 The State party notes that "investigations are in fact being undertaken by the Inspectorate of the Ministry of Justice in respect of the applicant's complaint and a report on the matter is pending. In the circumstances, it would be improper for the Committee to make a finding on the merits of the case".
7.1 In his comments, counsel reaffirms that a constitutional motion would not be an effective remedy for Mr. Bailey, due to the unavailability of legal aid for the purpose. With respect to the possibility of filing complaints with the Ombudsman and the Inspectorate of the Department of Corrections, counsel notes that the author did notify the Ombudsman of his grievances and that, as a result, he was subjected to threats and intimidation by prison warders. It is submitted that in the circumstances, such a complaint is unlikely to yield concrete results; furthermore, counsel notes that the State party has failed to point out how an inquiry by the Department of Corrections would be conducted, what its powers would be, what the author's rights in such an inquiry would be, and what type of redress or remedy could be ordered upon conclusion of such an inquiry. Counsel dismisses the suggestion that an "official report could compensate Mr. Bailey for the injuries sustained or in any way supply him with an adequate remedy".
7.2 Counsel dismisses the possibility of a civil action for damages for assault as "wholly unpractical and unrealistic" in the circumstances of the case described above. Furthermore, he notes that Mr. Bailey would once again depend on legal aid for the purpose, and the State party has not suggested that legal aid would be available for a civil action for damages.
Post-admissibility proceedings and examination of merits
8.1 The Committee has taken note of the State party's arguments on admissibility formulated after the Committee's decision declaring the communication admissible, especially in respect of the availability of constitutional remedies which the author may pursue, as well as of counsel's further comments on this issue. It recalls that the Supreme Court of Jamaica has, in recent cases, allowed applications for constitutional redress in respect of breaches of fundamental rights, after the criminal appeals in these cases had been dismissed.
8.2 However, the Committee also recalls that by submission of 10 October 1991 in a different case, b/ the State party indicated that legal aid is not provided for constitutional motions, and that it has no obligation under the Covenant to make legal aid available in respect of such motions, as they do not involve the determination of a criminal charge, as required under article 14, paragraph 3 (d), of the Covenant. In the view of the Committee, this supports the finding that a constitutional motion is not an available and effective remedy for an author who has no means of his own to pursue it. In this context, the Committee observes that the author does not claim that he is absolved from pursuing constitutional remedies because of his indigence; rather, it is the State party's unwillingness or inability to provide legal aid for the purpose that renders the remedy one that need not be pursued for purposes of the Optional Protocol. Similarly, in the circumstances of the case, a complaint to the Department of Corrections is not a remedy which the author is required to exhaust for purposes of the Optional Protocol. Accordingly, there is no reason to revise the decision on admissibility of 18 October 1991.
9.1 The Committee notes that the State party has confined itself essentially to issues of admissibility and that it considers it "improper" for the Committee to make a finding on the merits of the author's allegations while investigations into his alleged ill-treatment on death row are said to be pending. Article 4, paragraph 2, of the Optional Protocol enjoins a State party to investigate thoroughly, in good faith and within the imparted deadlines, all the allegations of violations of the Covenant made against it and against its judicial authorities, and to make available to the Committee all the information at its disposal.
9.2 The author has alleged that he suffered beatings and injuries at the hand of prison officers during an incident on 29 May 1990. This claim has not been refuted by the State party, which has confined itself to the mere statement that the claim is being investigated and that, in the circumstances, it would be inappropriate for the Committee to make a finding on the merits.
9.3 The Committee is unable to share the State party's reasoning. Firstly, the author's claim that he was threatened by warders when he sought to pursue his complaint with the Ombudsman has remained uncontested. Secondly, the Committee has not been notified whether the investigation into the author's allegations have been concluded some 35 months after the event or whether, indeed, they are proceeding. In the circumstances, it is fully within the Committee's competence to proceed with the examination of the author's claim, and in the absence of any further information on such investigations, due weight must be given to the author's allegations, to the extent that they have been substantiated. The Committee considers that his claims have been substantiated. In the Committee's opinion, the fact that Mr. Bailey was beaten repeatedly with clubs, iron pipes and batons, and then left without any medical attention in spite of injuries to head and hands, amounts to cruel and inhuman treatment within the meaning of article 7 of the Covenant and also entails a violation of article 10, paragraph 1.
10. 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 a violation of articles 7 and 10, paragraph 1, of the Covenant.
11.1 In accordance with the provisions of article 2 of the Covenant, the State party is under an obligation to take effective measures to remedy the violations suffered by Mr. Bailey, including the award of appropriate compensation, and to ensure that similar violations do not occur in the future. In this context, the Committee observes that in other cases, similar uncontested allegations have been the basis of findings, by the Committee, of violations of the Covenant.
11.2 The Committee would wish to receive information, within 90 days, on any relevant measures adopted by the State party in respect of the Committee's views.
[Done in English, French and Spanish, the English text being the original version.]
Notes
a/ Communications Nos. 210/1986 and 225/1987, views adopted on 6 April 1989.
b/ See communication No. 283/1988 (Aston Little v. Jamaica), views adopted on 1 November 1991, para. 7.3.
N. Communication No. 338/1988, Leroy Simmonds v. Jamaica
(views adopted on 23 October 1992, forty-sixth session)
Submitted by: Leroy Simmonds (represented by counsel)
Alleged victim: The author
State party: Jamaica
Date of communication: 22 November 1988
Date of decision on admissibility: 15 March 1990
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 23 October 1992,
Having concluded its consideration of communication No. 338/1988, submitted to the Human Rights Committee on behalf of Mr. Leroy Simmonds 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 Leroy Simmonds, a Jamaican citizen currently awaiting execution at St. Catherine District Prison, Jamaica. He claims to be a victim of violations by Jamaica of article 14 of the International Covenant on Civil and Political Rights. He is represented by counsel.
Facts as submitted
2.1 The author was charged with the murder, on 15 May 1983 in the Westmoreland area, of one Maurice Forrester; he claims to be innocent of the crime. The prosecution contended that at 4 a.m. on 15 May 1983, the author and another man entered the deceased's house armed with a handgun and a dagger, respectively. They ordered the deceased and his girlfriend, Roselena Brown, out of their bedroom and forced them to board the deceased's rented car, which was driven by a third man. They drove for about half a mile to a rendezvous with another car. An exchange of drivers took place, and a fourth man drove the deceased's car; the other car followed. Upon reaching Spur Tree, the cars turned into a cul-de-sac; there, Mr. Forrester was shot in the head, and Roselena Brown in the mouth. The bodies were placed into the deceased's car, which was doused with petrol and set on fire. Roselena Brown managed to escape in spite of her injuries.
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* An individual opinion submitted by Committee members Mr. Julio Prado Vallejo, Mr. Waleed Sadi and Mr. Bertil Wennergren is appended.
2.2 It was contended that the killing was an act of vengeance, as Mr. Forrester was said to have given information to the police. On 13 November 1986, three and a half years after the crime was committed, the author was detained for two
weeks, allegedly in the absence of formal charges. His attorney filed a habeascorpus action on his behalf, but on 27 November 1986, the author was formally charged with murder. No identification parade was held. The author contends that the charges against him were fabricated by the police superintendent in charge of the preliminary investigation. In this context, he observes that throughout the two months of the preliminary investigation, the police was unable to obtain a statement that would have incriminated him, and that it was only when the examining magistrate notified the police that she would have to release the author for lack of evidence that such a statement was produced.
2.3 On 6 November 1987, he was found guilty as charged and sentenced to death. On 25 May 1988, the Court of Appeal dismissed his appeal, treating the hearing of the application for leave to appeal as the appeal itself. On 19 December 1988, the Judicial Committee of the Privy Council dismissed the author's petition for special leave to appeal.
2.4 During the trial, Roselena Brown testified as the prosecution's principal witness. She made a dock identification of the author on 5 November 1987, and purported to recognize him on the basis of eight photographs shown to her by the police on the day after the murder, when she was hospitalized recovering from her injuries. She further admitted during the trial that she only knew the author under his "alias" name; the author contends that the same "alias" was used by several individuals. The trial judge admitted her evidence. No witnesses were sought to testify on the author's behalf. The author himself made a statement from the dock, maintaining that he had never been to Westmoreland.
2.5 In respect of the issue of exhaustion of domestic remedies, counsel contends that a constitutional motion would not constitute an available and effective remedy to the author in the circumstances of the case, as no legal aid is made available by the State party for the purpose, and no lawyer has accepted to represent the author for this purpose on a pro bono basis.
Complaint
3.1 The author claims that he was denied a fair and impartial trial, in that the trial judge failed properly to exercise his discretion to exclude questionable identification evidence, because he did not object to the author's dock identification, and because he misdirected the jury on the issue of identification.
3.2 The author further claims that his conviction was contrary to article 14, paragraph 3 (b) and (d), of the Covenant and Sections 14, paragraph 1, and 20, paragraph 6, of the Jamaican Constitution, in that he was not given adequate facilities for the preparation of his trial defence and of his appeal. In this context, he claims that the system of legal aid made available in Jamaica to poor persons, such as himself, violates the Jamaican Constitution.
3.3 More specifically, the author contends that he was not informed about either date or outcome of his appeal until two days after it had been dismissed. On the "notice of appeal", dated 10 November 1987, the author had indicated that he wished to be present during the hearing of the appeal and that he did not wish legal aid to be assigned to him. A legal aid lawyer was assigned to him allegedly without his knowledge; the author contends that this lawyer did not even contact him, so that he could not discuss the appeal with him. The same lawyer argued the appeal on the ground of provocation, without referring to the identification issue, on which the author mainly relied.
State party's observations on admissibility
4. The State party argues that the communication is inadmissible under article 5, paragraph 2 (b), of the Optional Protocol. It observes that the author's rights under article 14 of the Covenant are coterminous with the rights granted under Section 20 of the Jamaican Constitution. Under the Constitution, anyone who argues that a fundamental right has been, is being or is likely to be infringed in relation to him may apply to the Constitutional Court for redress. The decision of the Constitutional Court may be appealed to the Court of Appeal and from there to the Judicial Committee of the Privy Council. The State party concludes that since the author failed to pursue his constitutional remedies before the Supreme Court, his communication remains inadmissible.
Committee's decision on admissibility
5.1 During its thirty-eighth session in March 1990, the Committee considered the admissibility of the communication. It took note of the State party's contention that the complaint was inadmissible due to Mr. Simmonds' failure to avail himself of constitutional remedies under the Jamaican Constitution. In the circumstances of the case, the Committee considered that recourse to the Constitutional Court under Section 25 of the Jamaican Constitution was not a remedy available to the author within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.
5.2 The Committee noted that some of the author's allegations pertained to the issue of adequacy or otherwise of the judge's instructions to the jury, in particular on the issue of the treatment of identification evidence. The Committee reiterated that the review by it of specific instructions to the jury is beyond the scope of application of article 14 of the Covenant, unless it can be ascertained that the instructions to the jury were clearly arbitrary or amounted to a denial of justice, or that the judge clearly violated his obligation of impartiality. In the circumstances, the Committee found that the judge's instructions did not suffer from such defects.
5.3 On 15 March 1990, the Committee declared the communication admissible in respect of article 14, paragraph 3 (b) and (d), of the Covenant.
State party's objections to the decision on admissibility
6.1 In a submission dated 6 February 1991, the State party contends that the Committee's admissibility decision reflects a misunderstanding of the operation of Sections 25(1) and 25(2) of the Jamaican Constitution. The right to apply for redress under Section 25(1) is "without prejudice to any other action with respect to the same matter which is lawfully available". The only limitation in Section 25(2) is not applicable to the case in the State party's opinion, since the alleged breach of the right to a fair trial was not an issue in the author's criminal appeals:
"... If the contravention alleged was not the subject of the criminal law appeals, ex hypothesi, those appeals could hardly constitute an adequate remedy for that contravention. The decision of the Committee would render meaningless ... the constitutional rights of Jamaicans and persons in Jamaica, by its failure to distinguish between the right to appeal against the verdict and sentence of the court in a criminal case, and the right to apply for constitutional redress".
6.2 The State party observes that there are judicial precedents which illustrate that recourse to criminal law appellate remedies does not render the proviso of Section 25(2) applicable in situations where, following criminal law appeals, an individual files for constitutional redress.
6.3 In respect of the absence of legal aid for the filing of constitutional motions, the State party observes that nothing in the Optional Protocol or customary international law supports the contention that an individual is relieved of the obligation to exhaust domestic remedies on the ground that his indigence has prevented him from resorting to an available remedy. In this context, it is submitted that the Covenant only imposes a duty to provide legal aid in respect of criminal offences (art. 14, para. 3 (d)). Further, international conventions dealing with economic, social and cultural rights do not impose an unqualified obligation on States to implement such rights: thus, article 2 of the International Covenant on Economic, Social and Cultural Rights provides for the progressive implementation of economic rights. In the circumstances, the State party argues that it is incorrect to infer from the author's indigence and the absence of legal aid for constitutional motions that the remedy is necessarily non-existent or unavailable. Accordingly, the State party requests the Committee to review its decision of admissibility.
Reconsideration of admissibility issues and examination of the merits
7.1 The Committee has taken note of the State party's arguments on admissibility formulated after the Committee's decision declaring the communication admissible, especially in respect of the availability of constitutional remedies which the author may still pursue. It recalls that the Supreme Court of Jamaica has, in recent cases, allowed applications for constitutional redress in respect of breaches of fundamental rights, after the criminal appeals in these cases had been dismissed.
7.2 However, the Committee also recalls that by submission of 10 October 1991 concerning another case, a/ the State party indicated that legal aid is not provided for constitutional motions, and that it has no obligation under the Covenant to make legal aid available in respect of such motions, as they do not involve the determination of a criminal charge, as required under article 14, paragraph 3 (d), of the Covenant. In the view of the Committee, this supports the finding, made in the decision on admissibility, that a constitutional motion is not an available remedy for an author who has no means of his own to pursue it. In this context, the Committee observes that the author does not claim that he is absolved from pursuing constitutional remedies because of his indigence; rather it is the State party's unwillingness or inability to provide legal aid for the purpose that renders the remedy one that need not be pursued for purposes of the Optional Protocol. Accordingly, there is no reason to revise the decision on admissibility of 15 March 1990.
8.1 The Committee notes that, several requests for clarifications notwithstanding, the State party has essentially confined itself to issues of admissibility. Article 4, paragraph 2, of the Optional Protocol enjoins a State party to investigate in good faith and within the imparted deadlines all the allegations of violations of the Covenant made against it and its judicial authorities, and to make available to the Committee all the information at its disposal. In the circumstances, due weight must be given to the author's allegations, to the extent that they have been substantiated.
8.2 As indicated in the Committee's decision on admissibility, the Committee must determine whether the fact that the author was not in a position to properly prepare his appeal and that he was represented before the Court of Appeal of Jamaica by an attorney not of his choosing amounts to a violation of article 14, paragraph 3 (b) and (d), of the Covenant.
8.3 In this connection, the Committee reaffirms that it is axiomatic that legal assistance must be made available to a convicted prisoner under sentence of death. b/ This applies to the trial in the court of first instance as well as to appellate proceedings. In Mr. Simmonds' case, it is uncontested that legal counsel was assigned to him for the appeal. What is at issue is whether he should have been notified of this assignment in a timely manner and given sufficient opportunity to consult with counsel prior to the hearing of the appeal, and whether he should have been afforded an opportunity to be present during the hearing of the appeal.
8.4 The author's application for leave to appeal to the Court of Appeal, dated 10 November 1987, indicates that he wished to be present during the hearing of the appeal and that he did not wish the Court to assign legal aid to him. The Registry of the Court of Appeal ignored the author's wish, as his application for leave to appeal was heard in his absence and in the presence of a legal aid attorney, B. S., who argued the appeal on a ground that Mr. Simmonds had not wished to pursue. The Committee further notes with concern that the author was not informed with sufficient advance notice about the date of the hearing of his appeal; this delay jeopardized his opportunities to prepare his appeal and to consult with his court-appointed lawyer, whose identity he did not know until the day of the hearing itself. His opportunities to prepare the appeal were further frustrated by the fact that the application for leave to appeal was treated as the hearing of the appeal itself, at which he was not authorized to be present. In the circumstances, the Committee finds a violation of article 14, paragraph 3 (b) and (d).
8.5 The Committee considers that the imposition of a sentence of death upon the conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is available, a violation of article 6 of the Covenant. As the Committee noted in its General Comment 6(16), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that "the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal". In the present case, as the final sentence of death was passed without having met the requirements for a fair trial set forth in article 14, it must be concluded that the right protected by article 6 of the Covenant has been violated.
9. 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 as found by the Committee disclose a violation of articles 6 and 14, paragraph 3 (b) and (d), of the Covenant.
10. The Committee is of the view that Mr. Leroy Simmonds is entitled to a remedy entailing his release. It requests the State party to provide information, within ninety days, on any relevant measures taken in respect of the Committee's views.
Notes
a/ Communication No. 283/1988 (Aston Little v. Jamaica), views adopted on 1 November 1991.
b/ Communication No. 272/1988 (Alrick Thomas v. Jamaica), views adopted on 31 March 1992, para. 11.4.
Appendix
Individual opinion submitted by Committee members
Mr. Julio Prado Vallejo, Mr. Waleed Sadi and
Mr. Bertil Wennergren, pursuant to rule 94,
paragraph 3, of the Committee's rules of procedure
concerning the Committee's views on communication
No. 338/1988 (Leroy Simmonds v. Jamaica)
The author's complaint centres on the proposition that the Court of Appeal of Jamaica failed to provide him with a fair trial.
The violations of article 14, paragraph 3 (b) and (d), and in consequence of article 6, of the Covenant are well substantiated. Where we differ is in respect of the remedy suggested to the State party by the Committee. The Committee proposes the release of the author; we do not agree with this remedy, in the light of the nature of and the circumstances under which the offence had occurred, and which were neither refuted nor confirmed because of the deficiencies in the judicial proceedings. Accordingly, the most appropriate way of remedying what occurred would be to see to it that the author will be afforded another opportunity to obtain a fair trial. This result can be obtained by assisting the author in pursuing constitutional remedies.
It should be noted in this context that it is correct that constitutional motions have been deemed by the Committee not to provide an available and effective remedy which an author must first exhaust, but that this has been the case only where the authors have had no means of their own and have not been entitled to obtain legal aid from the State party. Therefore, if the author is given such assistance ex gratia in the case, he will be in a position to seek a review of his grievances under the constitutional motions procedure, thereby making this remedy available and effective.
We thus are of the opinion that the author should be afforded the possibility of pursuing a constitutional motion by assigning to him legal aid for the purpose, so as to enable him to seek effective redress for the violations suffered.
[Done in English, French, Russian and Spanish, the English text being the original version.]
O. Communication No. 356/1989, Trevor Collins v. Jamaica
(views adopted on 25 March 1993, forty-seventh session)*
Submitted by: Trevor Collins (represented by counsel)
Alleged victim: The author
State party: Jamaica
Date of communication: 17 April 1989
Date of decision on admissibility: 17 October 1989
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 25 March 1993,
Having concluded its consideration of communication No. 356/1989, submitted to the Human Rights Committee by Trevor Collins 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 Trevor Collins, a Jamaican citizen awaiting execution at St. Catherine District Prison, Spanish Town, Jamaica. He claims to be a victim of violations by Jamaica of article 14, paragraphs 2 and 3 (b) to (e), of the International Covenant on Civil and Political Rights. He is represented by counsel.
Facts as submitted
2.1 The author was accused, jointly with a co-defendant, Paul Kelly, a/ of the murder, on 2 July 1981, of one O. V. Jamieson. His trial took place in the Westmoreland Circuit Court from 9 to 15 February 1983; he and Mr. Kelly were found guilty as charged and sentenced to death. On 23 February 1983, the author appealed to the Court of Appeal of Jamaica. On 28 April 1986 the Court of Appeal, treating the application for leave to appeal as the hearing of the appeal itself, dismissed the appeal. The Court of Appeal did not issue a reasoned judgement but merely an oral judgement. Because of the absence of a reasoned appeal judgement, the author has not petitioned the Judicial Committee of the Privy Council for special leave to appeal.
2.2 The body of the deceased was discovered on 2 July 1981 in bushes near the road of Lennox Bigwoods. The previous day, the author and Mr. Kelly had sold a cow to one Basil Miller. The prosecution contended that the cow had been stolen
* Pursuant to rule 85 of the Committee's rules of procedure, Committee member Mr. Laurel Francis did not take part in the adoption of the Committee's views.
from Mr. Jamieson, who had visited Mr. Miller's home in the evening of 1 July 1981 and identified the cow as his property. The accused allegedly ambushed Mr. Jamieson on his way home and beat him to death, as they believed that he had obtained from Mr. Miller the receipt implicating them in the theft of the cow. The author then allegedly threw his blood-stained clothes into a latrine next to his home and went to Kingston. Mr. Collins contests this version of the facts; he argues that he had obtained the cow from one Alvin Spence, and that he and his co-defendant arrived in Kingston several hours before the crime was committed.
2.3 The author notes that there were no witnesses to the crime, nor any forensic evidence which would have linked him to the deceased. Accordingly, the prosecution relied on circumstantial evidence, i.e. the blood-stained clothes found close to the author's home, the presence of a motive and the testimony of Mr. Kelly's sister and the author's brother, which conflicted with the version put forward by the accused. It further relied on confessions allegedly obtained from the accused upon their arrest; although the latter contended that the confessions were made under duress, the judge ruled them admissible. The author's appeal to the Court of Appeal was filed on the following grounds: (a) that the trial was unfair; (b) that there was insufficient evidence to warrant a conviction and (c) that the prosecution's evidence was contradictory.
Complaint
3.1 The author submits that the delay of over three years in the determination of his appeal by the Jamaican Court of Appeal violates his right, under article 14, paragraph 3 (c), to be tried "without undue delay". He further claims that he was effectively unrepresented before the Court of Appeal, as his court-appointed representative merely stated that he found no merits in arguing the appeal.
3.2 It is submitted that the author's trial in the Westmoreland Circuit Court violated article 14, paragraph 3 (b), (d) and (e) and, as a result, the presumption of innocence of article 14, paragraph 2. In this context, counsel points out that the trial transcript reveals that no witnesses were called on the author's behalf although he had asked for witnesses to be called, that no evidence was adduced either in support of his alibi that he had left Westmoreland for Kingston several hours before the crime, nor in support of the claim that the cow Mr. Collins had sold to Basil Miller had been given to him by Mr. Spence. These points are said to indicate that the author's representation during the trial was seriously deficient. Counsel adds that legal aid provided by the State party is such that it is all but impossible for any defendant's case to be properly prepared and/or for witnesses to be traced, as would be appropriate in a capital case.
3.3 With respect to the requirement of exhaustion of domestic remedies, the author notes that senior counsel instructed on his behalf advised there were no grounds upon which a petition for special leave to appeal to the Judicial Committee of the Privy Council could justifiably be filed. He had further suggested that the Jamaican Constitutional Court and the Court of Appeal would consider themselves bound by the decision of the Judicial Committee of the Privy Council in the case of Riley et al. v. Attorney General of Jamaica, and that no decision in the case could be taken unless and until a petition to the Judicial Committee were allowed or decided upon. Accordingly, the process of exhaustion of domestic remedies under the Jamaican Constitution and, thereafter, to the Judicial Committee would take several years. Counsel thus concludes that available and effective remedies have been exhausted. He adds that the application of domestic remedies has already been unreasonably prolonged, as the author has been detained on death row for close to 10 years.
State party's information and observations
4. The State party argues that the author retains the right, under Section 110 of the Jamaican Constitution, to petition the Judicial Committee of the Privy Council for special leave to appeal. It adds that the rights protected by article 14, paragraphs 2 and 3, are coterminous with those protected under Section 20 of the Jamaican Constitution. Under Section 25, the author could seek enforcement of his constitutional rights before the Supreme (Constitutional) Court. The State party notes that the author has failed to seek constitutional redress.
Committee's decision on admissibility and the State party's challenge thereof
5.1 During the thirty-seventh session, the Committee considered the admissibility of the communication. With respect to the requirement of exhaustion of domestic remedies, it noted that the Court of Appeal of Jamaica had not issued a written judgement in the case, the submission of which to the Judicial Committee could be considered a prerequisite for a petition for special leave to appeal to be entertained. In the circumstances, counsel could objectively assume that any petition for leave to appeal would fail, on account of the unavailability of a written judgement from the Court of Appeal. The Committee recalled that domestic remedies need not be exhausted if there are serious reasons for believing that they have no real prospect of success. On the basis of the information before it, it concluded that the requirements of article 5, paragraph 2 (b), of the Optional Protocol had been met.
5.2 On 17 October 1989, accordingly, the Committee declared the communication admissible.
6.1 In its submission under article 4, paragraph 2, of the Optional Protocol, the State party challenges the Committee's findings and reiterates that the author still has criminal remedies (before the Judicial Committee of the Privy Council) and constitutional remedies (before the Constitutional Court) which he is required to pursue. It adds that there are no grounds which would relieve Mr. Collins from his obligation to pursue these remedies, and that such delays as occurred in the proceedings cannot be attributed to the judicial authorities. Accordingly, there is no basis for the assertion that the application of domestic remedies has been unreasonably prolonged.
6.2 Still in the context of exhaustion of domestic remedies, the State party observes that the Privy Council Rules do not make a written judgement of the Court of Appeal a prerequisite for a petition for special leave to appeal:
"Rule 4 provides that a petitioner for special leave to appeal lodge the judgment from which special leave to appeal is sought. However, 'judgment' is defined in Rule 1 as including 'decree, order, sentence or decision of any court, judge or judicial officer'. Thus the order or decision of the Court of Appeal in respect of a particular appeal, as distinct from the written judgment, is a sufficient basis for a petition for special leave to appeal to the Privy Council, and in practice the Privy Council has heard appeals on the basis of the order or decision of the Court of Appeal dismissing the appeal."
6.3 Finally, the State party contends that the facts relied upon by counsel to substantiate the author's allegations under article 14, paragraphs 2 and 3, do not disclose any breaches attributable to the Government. To the extent that the claims involve issues of evaluation of evidence, the State party maintains that the Committee is not competent to consider those issues.
Review of admissibility
7.1 The Committee has taken note of the State party's submission of 8 May 1990, which challenges the admissibility decision of 17 October 1989. It takes the opportunity to expand on its admissibility findings. The State party has argued that the Judicial Committee of the Privy Council may hear a petition for special leave to appeal even in the absence of a written judgement of the Court of Appeal; it bases itself on its interpretation of Rule 4 juncto Rule 1 of the Privy Council's Rules of Procedure. While the Judicial Committee's rules of procedure do not exclude this reasoning, it fails to take into account that, for purposes of the Optional Protocol, a judicial remedy must not only be available in theory but also be effective, that is, have a reasonable prospect of success. It is true that the Judicial Committee has heard several petitions concerning Jamaica in the absence of a written judgement of the Court of Appeal, but, on the basis of the information available to the Committee, all of these petitions were dismissed because of the absence of such a judgement. In this respect, therefore, there is no reason to reverse the Committee's admissibility decision.
7.2 Similar considerations apply to the possibility of instituting constitutional remedies before the Supreme (Constitutional) Court. This issue has already been examined by the Committee in its views on communications 230/1987 (Raphael Henry v. Jamaica) and 283/1988 (Aston Little v. Jamaica). b/ In the circumstances of these communications, the Committee concluded that a constitutional motion did not constitute an available and effective remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.
7.3 The Committee further notes that the State party does not provide legal aid for constitutional motions; as the author is unable to secure private legal representation for this purpose, it concludes that such a motion would not constitute a remedy which the author would be required to exhaust for purposes of the Optional Protocol, and that there is no reason to reverse the decision of 17 October 1989.
7.4 With regard to the author's contention that he was forced to confess his guilt, contrary to article 14, paragraph 3 (g), of the Covenant, the Committee notes that this claim was not submitted to the Committee until almost three years after the Committee's decision to declare the communication admissible. In the circumstances, the Committee does not admit this claim for consideration on the merits.
Examination of the merits
8.1 In respect of the author's claims under article 14, paragraph 3 (b) and (e), the Committee reiterates that the right of an accused person to have adequate time and facilities for the preparation of his defence is an important element of the guarantee of a fair trial and an important aspect of the principle of equality of arms. Wherever a capital sentence may be pronounced on the accused, it is imperative that sufficient time must be granted to the accused and his counsel to prepare their defence. The determination of what constitutes "adequate time" requires an assessment of the individual circumstances of each case. The author also contends that he could not obtain the attendance of witnesses. The material before the Committee does not disclose, however, whether either counsel or the author himself complained to the trial judge that the time or facilities for the preparation of the defence had been inadequate. Furthermore, there is no indication that counsel's decision not to call witnesses was not in the exercise of his professional judgement, or that, if a request to call witnesses was made, the judge disallowed it. Accordingly, there is no basis for a finding of a violation of article 14, paragraph 3 (b) and (e).
8.2 As to the author's legal representation before the Court of Appeal, the Committee reaffirms that it is axiomatic that legal assistance be made available to a convicted prisoner under sentence of death. This applies to all stages of the judicial proceedings. Counsel was entitled to recommend that an appeal should not proceed. But if the author insisted upon the appeal, counsel should have continued to represent him or, alternatively, Mr. Collins should have had the opportunity to retain counsel at his own expense. In this case, it is clear that legal assistance was assigned to Mr. Collins for the appeal. What is at issue is whether counsel had a right to effectively abandon the appeal without prior consultation with the author. Counsel indeed opined that there was no merit in the appeal, thus effectively leaving Mr. Collins without legal representation. While article 14, paragraph 3 (d), does not entitle the accused to choose counsel provided to him free of charge, measures must be taken to ensure that counsel, once assigned, provides effective representation in the interest of justice. This includes consulting with, and informing, the accused if he intends to withdraw an appeal or to argue, before the appellate instance, that the appeal has no merit.
8.3 Finally, because of the absence of a written judgement of the Court of Appeal, the author has been unable to effectively petition the Judicial Committee of the Privy Council. This, in the Committee's opinion, entails a violation of article 14, paragraph 3 (c), and article 14, paragraph 5. The Committee reaffirms that in all cases, and especially in capital cases, the accused is entitled to trial and appeal proceedings without undue delay, whatever the outcome of the judicial proceedings may turn out to be. c/
8.4 The Committee is of the opinion that the imposition of a sentence of death upon the conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is available, a violation of article 6 of the Covenant. As the Committee noted in its General Comment 6 (16), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that "the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal". In the present case, while a petition for special leave to appeal is in theory still available, it would not be an available remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol (see para. 7.1 above). Accordingly, it must be concluded that the final sentence of death was passed without having met the requirements of article 14, and that as a result, the right protected by article 6 of the Covenant has been violated.
9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, finds that the facts before it disclose violations of articles 6 and 14, paragraphs 3 (c), (d) and 5, of the Covenant.
10. The Committee is of the view that Mr. Trevor Collins is entitled to a remedy entailing his release. It requests the State party to provide information, within ninety days, on any relevant measures taken by the State party in compliance with the Committee's views.
[Done in English, French and Spanish, the English text being the original version.]
Notes
a/ The Committee adopted its views on Mr. Kelly's communication on 8 April 1991, finding violations of articles 6, 9, 10 and 14 of the Covenant, and requested the State party to release Mr. Kelly; see communication No. 253/1987.
b/ Communication No. 230/1987, views adopted on 1 November 1991, paras. 7.1 to 7.5; communication No. 283/1988, views adopted on 1 November 1991, paras. 7.1 to 7.6.
c/ See views on communication No. 253/1987 (Paul Kelly v. Jamaica), adopted on 8 April 1991, para. 5.12.
P. Communications Nos. 359/1989 and 385/1989, John Ballantyne
and Elizabeth Davidson, and Gordon McIntyre v. Canada
(views adopted on 31 March 1993, forty-seventh session)
Submitted by: John Ballantyne and Elizabeth Davidson, and
Gordon McIntyre
Alleged victims: The authors
State party: Canada
Date of communications: 10 April and 21 November 1989 (initial submissions)
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 31 March 1993,
Having concluded its consideration of communication No. 359/1989 submitted to the Human Rights Committee by J. Ballantyne and E. Davidson, and of communication No. 385/1989 submitted by G. McIntyre 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 authors of the communications, and the State party,
Adopts its views under article 5, paragraph 4, of the Optional Protocol.*
1. The authors of the communications (initial submissions dated 10 April 1989 and 21 November 1989 and subsequent correspondence) are John Ballantyne, Elizabeth Davidson and Gordon McIntyre, Canadian citizens residing in the Province of Quebec. The authors, one a painter, the second a designer and the third an undertaker by profession, have their businesses in Sutton and Huntingdon, Quebec. Their mother tongue is English, as is that of many of their clients. They allege to be victims of violations of articles 2, 19, 26 and 27 of the International Covenant on Civil and Political Rights by the Federal Government of Canada and by the Province of Quebec, because they are forbidden to use English for purposes of advertising, e.g., on commercial signs outside the business premises, or in the name of the firm.
Facts as submitted
2.1 The authors of the first communication (No. 359/1989), Mr. Ballantyne and Ms. Davidson, sell clothes and paintings to a predominantly English-speaking clientele, and have always used English signs to attract customers.
2.2 The author of the second communication (No. 385/1989), Mr. McIntyre, states that in July 1988, he received notice from the Commissioner-Enquirer of the "Commission de protection de la langue française" that following a "check-up" it
________________________
* Five concurring and dissenting opinions, signed by eight Committee members, are appended to the present document.
had been ascertained that he had installed a sign carrying the firm name "Kelly Funeral Home" on the grounds of his establishment, which constituted an infraction of the Charter of the French Language. He was requested to inform the Commissioner within 15 days in writing of measures taken to correct the situation and to prevent the recurrence of a similar incident. The author has since removed his company sign.
2.3 Mr. McIntyre's business was established over 100 years ago and in the 25 years under his management has always operated without language constraints. Now he is allegedly disadvantaged vis-à-vis French speaking competitors who are allowed to use their mother tongue without restriction. Of the seven funeral homes in the area, his is the only one operated by an English-speaking Canadian serving the English-speaking community. Out of a total population of 15,600 in the town in question, some 5,600 inhabitants speak English. Bill No. 178, however, prevents him from indicating in his commercial sign in English the service he provides. The author alleges a loss of business and a reduced impact on passers-by, who no longer identify his services by an external sign.
2.4 Mr. McIntyre also claims that since he has "taken on the Government" a certain "fear factor" discourages potential clients. It leads to hate calls, threats and ridicule in the press by suggestions that he is a "racist".
Complaint
3.1 The authors challenge sections 1, 6 and 10 of Bill No. 178 enacted by the Provincial Government of Quebec on 22 December 1988, with the purpose of modifying Bill No. 101, known as the Charter of the French Language (Charte de la langue française). The ratio legis of Bill No. 178, as stated explicitly by the Quebec legislature, was to override two judgements rendered by the Supreme Court of Canada on 15 December 1988, declaring several sections of the Charter unconstitutional. The official explanatory note preceding the text of the Charter states that only French may be used in public bill-posting and in commercial advertising outdoors. It stipulates that this rule shall also apply inside means of public transport and certain establishments, including shopping centres. The authors claim to be personally affected by the application of Bill No. 178.
3.2 The authors furthermore claim that the "notwithstanding" clause contained in section 10 of Bill No. 178 overrides the safeguards contained in the Canadian Charter of Human Rights and Freedoms (Canadian Charter) and the Quebec Charter of Human Rights and Freedoms (Quebec Charter). They point out that section 33 of the Canadian Charter, and its counterpart section 52 of the Quebec Charter, allow for the suspension of protection against human rights violations.
3.3 The authors claim that these provisions, whenever applied, violate Canada's obligations under the Covenant, in particular article 2. Exempting legislation from compliance with the provisions of the Canadian or Quebec Charters of Human Rights and Freedoms effectively denies a remedy to citizens whose rights have been or are being violated by the legislation thus exempted.
Legislative provisions
4.1 The relevant original provisions of the Charter of the French language (Bill No. 101, S.Q. 1977, C-5) have been modified several times. In essence, however, they have remained substantially the same. In 1977, section 58 read as follows: