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