A/49/40

United Nations

Report of the

Human Rights Committee

Volume II

General Assembly

Official Records • Forty-ninth Session

Supplement No. 40 (A/49/40)

A/49/40

Report of the

Human Rights Committee

Volume II

General Assembly

Official Records • Forty-ninth Session

Supplement No. 40 (A/49/40)

United Nations • New York, 1994

NOTE

        Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a United Nations document.

        The present document contains annexes IX and X of the report of the Human Rights Committee. Chapters I to VIII and annexes I to VIII, XI and XII are contained in volume I.

ISSN 0255-2353

[Original: English]

[21 September 1994]

CONTENTS

Chapter

    I.       ORGANIZATIONAL AND OTHER MATTERS

             A.     States parties to the Covenant

             B.     Sessions and agenda

             C.     Membership and attendance

             D.     Solemn declaration

             E.      Working groups

             F.      Other matters

             G.     Staff resources

             H.     Publicity for the work of the Committee

             I.       Adoption of the report

  II.        ACTION BY THE GENERAL ASSEMBLY AT ITS FORTY-EIGHTH SESSION AND BY THE COMMISSION ON HUMAN RIGHTS AT ITS FIFTIETH SESSION

III.         METHODS OF WORK OF THE COMMITTEE UNDER ARTICLE 40 OF THE COVENANT: OVERVIEW OF PRESENT WORKING METHODS

             A.     List of issues to be taken up in connection with the consideration of periodic reports of States parties

             B.     Comments of the Committee at the end of the consideration of reports of States parties

             C.     The Committee's procedures in dealing with emergency situations

             D.     Implementation of the Covenant in new States that constituted parts of former States parties to the Covenant

             E.      General comments

             F.      Overdue reports

             G.     Format of the annual report of the Committee under article 45 of the Covenant

  IV.      SUBMISSION OF REPORTS BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT

             A.     Reports submitted by States parties under article 40 of the Covenant during the period under review

CONTENTS (continued)

Chapter

             B.     Special decisions by the Human Rights Committee concerning reports of particular States

    V.     STATES THAT HAVE NOT COMPLIED WITH THEIR OBLIGATIONS UNDER ARTICLE 40

  VI.      CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT

             A.     Iceland

             B.     Norway

             C.     Japan

             D.     Malta

             E.      Romania

             F.      Costa Rica

             G.     Mexico

             H.     Cameroon

             I.       El Salvador

             J.      Libyan Arab Jamahiriya

             K.     Jordan

             L.      Togo

             M.    Italy

             N.     Azerbaijan

             O.     Cyprus

             P.      Slovenia

             Q.     Burundi

VII.       GENERAL COMMENTS OF THE COMMITTEE

VIII.      CONSIDERATION OF COMMUNICATIONS UNDER THE OPTIONAL PROTOCOL

             A.     Progress of work

             B.     Growth of the Committee's case-load under the Optional Protocol

             C.     New approaches to examining communications under the Optional Protocol

CONTENTS (continued)

Chapter

             D.     Individual opinions

             E.      Issues considered by the Committee

             F.      Remedies called for under the Committee's views

             G.     Follow-up activities

Annexes

    I.       STATES PARTIES TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND TO THE OPTIONAL PROTOCOLS AND STATES WHICH HAVE MADE THE DECLARATION UNDER ARTICLE 41 OF THE COVENANT AS AT 29 JULY 1994

             A.     States parties to the International Covenant on Civil and Political Rights

             B.     States parties to the First Optional Protocol

             C.     States which have made the declaration under article 41 of the Covenant

             D.     Status of the Second Optional Protocol aiming at the abolition of the death penalty

  II.        MEMBERSHIP AND OFFICERS OF THE HUMAN RIGHTS COMMITTEE, 1993-1994

             A.     Membership

             B.     Officers

III.         SUBMISSION OF REPORTS AND ADDITIONAL INFORMATION BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT DURING THE PERIOD UNDER REVIEW

 IV.         STATUS OF REPORTS CONSIDERED DURING THE PERIOD UNDER REVIEW AND OF REPORTS STILL PENDING BEFORE THE COMMITTEE

    V.     GENERAL COMMENTS UNDER ARTICLE 40, PARAGRAPH 4, OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

             General comment No. 23 (50) (art. 27)

  VI.      AMENDED RULES OF PROCEDURE

VII.       LETTER FROM THE CHAIRMAN OF THE COMMITTEE CONCERNING AN OVERDUE REPORT

VIII.      LISTS OF STATES PARTIES' DELEGATIONS THAT PARTICIPATED IN THE CONSIDERATION OF THEIR RESPECTIVE REPORTS BY THE HUMAN RIGHTS COMMITTEE AT ITS FORTY-NINTH, FIFTIETH AND FIFTY-FIRST SESSIONS

CONTENTS (continued)

Page

  IX.      VIEWS OF THE HUMAN RIGHTS COMMITTEE UNDER ARTICLE 5, PARAGRAPH 4,

             OF THE OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL

             AND POLITICAL RIGHTS ...............................................                                                                                1

             A.     Communication No. 321/1988, Maurice Thomas v. Jamaica

                       (views adopted on 19 October 1993, forty-ninth session) ........                                                                1

             B.     Communication No. 322/1988, Hugo Rodríguez v. Uruguay

                       (views adopted on 19 July 1994, fifty-first session) ...........                                                                      5

             C.     Communication No. 328/1988, Roberto Zelaya Blanco v.

                       Nicaragua (views adopted on 20 July 1994, fifty-first session) .                                                            12

             D.     Communication No. 330/1988, Albert Berry v. Jamaica

                       (views adopted on 7 April 1994, fiftieth session) ..............                                                                     20

             E.      Communication No. 332/1988, Devon Allen v. Jamaica

                       (views adopted on 31 March 1994, fiftieth session) .............                                                                  31

             F.      Communication No. 333/1988, Lenford Hamilton v. Jamaica

                       (views adopted on 23 March 1994, fiftieth session) .............                                                                  37

             G.     Communication No. 352/1989, Dennis Douglas, Errol Gentles and

                       Lorenzo Kerr v. Jamaica (views adopted on 19 October 1993,

                       forty-ninth session) ...........................................                                                                                      42

             H.     Communication No. 353/1988, Lloyd Grant v. Jamaica

                       (views adopted on 31 March 1994, fiftieth session) .............                                                                  50

             I.       Communication No. 355/1989, George Winston Reid v. Jamaica

                       (views adopted on 8 July 1994, fifty-first session) ............                                                                     59

             J.      Communication No. 366/1989, Isidore Kanana v. Zaire

                       (views adopted on 2 November 1993, forty-ninth session) ........                                                            65

             K.     Communication No. 375/1989, Glenmore Compass v. Jamaica

                       (views adopted on 19 October 1993, forty-ninth session) ........                                                              68

             L.      Communication No. 377/1989, Anthony Currie v. Jamaica

                       (views adopted on 29 March 1994, fiftieth session) .............                                                                  73

             M.    Communication No. 407/1990, Dwayne Hylton v. Jamaica

                       (views adopted on 8 July 1994, fifty-first session) ............                                                                     79

             N.     Communication No. 412/1990, Auli Kivenmaa v. Finland

                       (views adopted on 31 March 1994, fiftieth session) .............                                                                  85

                       Appendix .......................................................                                                                                          92

             O.     Communication No. 414/1990, Primo J. Mika Miha v. Equatorial

                       Guinea (views adopted on 8 July 1994, fifty-first session) .....                                                               96

CONTENTS (continued)

Page

             P.      Communication No. 417/1990, Manuel Balaguer Santacana v. Spain

                       (views adopted on 15 July 1994, fifty-first session) ...........                                                               101

                       Appendix .......................................................                                                                                     113

             Q.     Communication No. 418/1990, C. H. J. Cavalcanti Araujo-Jongen

                       v. the Netherlands (views adopted on 22 October 1993, forty-

                       ninth session) .................................................                                                                                     114

             R.     Communication No. 425/1990, A. M. M. Doesburd Lannooij Neefs

                       v. the Netherlands (views adopted on 15 July 1994, fifty-first

                       session) .......................................................                                                                                        120

             S.      Communication No. 428/1990, François Bozize v. the Central

                       African Republic (views adopted on 7 April 1994, fiftieth

                       session) .......................................................                                                                                        124

             T.      Communication No. 440/1990, Youssef El-Megreisi v. the Libyan

                       Arab Jamahiriya (views adopted on 23 March 1994, fiftieth

                       session) .......................................................                                                                                        128

             U.     Communication No. 441/1990, Robert Casanovas v. France

                       (views adopted on 19 July 1994, fifty-first session) ...........                                                               131

             V.     Communication No. 445/1991, Lyden Champagnie, Delroy Palmer

                       and Oswald Chisholm v. Jamaica (views adopted on 18 July 1994,

                       fifty-first session) ...........................................                                                                                    136

             W.    Communication No. 449/1991, Barbarín Mojica v. the Dominican

                       Republic (views adopted on 15 July 1994, fifty-first session) ..                                                         142

             X.     Communication No. 451/1991, Barry Stephen Harward v. Norway

                       (views adopted on 15 July 1994, fifty-first session) ...........                                                               146

             Y.     Communication No. 455/1991, Allan Singer v. Canada

                       (views adopted on 26 July 1994, fifty-first session) ...........                                                               155

             Z.      Communication No. 456/1991, Ismet Celepli v. Sweden

                       (views adopted on 18 July 1994, fifty-first session) ...........                                                               165

            AA.     Communication No. 458/1991, Albert Womah Mukong v. Cameroon

                        (views adopted on 21 July 1994, fifty-first session) ...........                                                               171

            BB.     Communication No. 468/1991, Angel N. Oló Bahamonde v.

                        Equatorial Guinea (views adopted on 20 October 1993,

                        forty-ninth session) ...........................................                                                                                  183

            CC.     Communication No. 469/1991, Charles Chitat Ng v. Canada

                        (views adopted on 5 November 1993, forty-ninth session) ........                                                       189

                        Appendix .......................................................                                                                                     208

CONTENTS (continued)

Page

           DD.     Communication No. 484/1991, H. J. Pepels v. the Netherlands

                       (views adopted on 15 July 1994, fifty-first session) ...........                                                                 221

           EE.      Communication No. 488/1992, Nicholas Toonen v. Australia

                       (views adopted on 31 March 1994, fiftieth session) .............                                                               226

                       Appendix .......................................................                                                                                       236

           FF.      Communication No. 492/1992, Lauri Peltonen v. Finland

                       (views adopted on 21 July 1994, fifty-first session) ...........                                                                 238

                       Appendix .......................................................                                                                                       244

  X.         DECISIONS OF THE HUMAN RIGHTS COMMITTEE DECLARING COMMUNICATIONS

              INADMISSIBLE UNDER THE OPTIONAL PROTOCOL TO THE INTERNATIONAL

              COVENANT ON CIVIL AND POLITICAL RIGHTS .............................                                                   246

              A.     Communication No. 384/1989, R. M. v. Trinidad and Tobago

                        (decision adopted on 29 October 1993, forty-ninth session) .....                                                          246

              B.     Communication No. 421/1990, Thierry Trébutien v. France

                        (decision adopted on 18 July 1994, fifty-first session) ........                                                                250

              C.     Communication No. 431/1990, O. Sara et al v. Finland

                        (decision adopted on 23 March 1994, fiftieth session) ..........                                                              257

              D.     Communication No. 433/1990, A. P. A. v. Spain

                        (decision adopted on 25 March 1994, fiftieth session) ..........                                                              269

                        Appendix .......................................................                                                                                       273

              E.      Communication No. 436/1990, Manuel Solís Palma v. Panama

                        (decision adopted on 18 July 1994, fifty-first session) ........                                                                274

              F.      Communication No. 452/1991, Jean Glaziou v. France

                        (decision adopted on 18 July 1994, fifty-first session) ........                                                                277

              G.     Communication No. 471/1991, Theophilus Barry v. Trinidad and

                        Tobago (decision adopted on 18 July 1994, fifty-first session) .                                                          283

              H.     Communication No. 475/1991, S. B. v. New Zealand

                        (decision adopted on 31 March 1994, fiftieth session) ..........                                                              287

              I.       Communication No. 476/1991, R. M. v. Trinidad and Tobago

                        (decision adopted on 31 March 1994, fiftieth session) ..........                                                              291

              J.       Communication No. 477/1991, J. A. M. B.-R. v. the Netherlands

                        (decision adopted on 7 April 1994, fiftieth session) ...........                                                                 294

                        Appendix .......................................................                                                                                       299

CONTENTS (continued)

Page

             K.     Communication No. 487/1992, Walter Rodríguez Veiga v. Uruguay

                       (decision adopted on 18 July 1994, fifty-first session) ........                                                                     302

             L.      Communication No. 489/1992, Peter Bradshaw v. Barbados

                       (decision adopted on 19 July 1994, fifty-first session) ........ 305

              M.    Communication No. 497/1992, Odia Amisi v. Zaire

                       (decision adopted on 19 July 1994, fifty-first session) ........                                                                     310

             N.     Communication No. 498/1992, Zdenek Drbal v. the Czech Republic

                       (decision adopted on 22 July 1994, fifty-first session) ........                                                                     312

                       Appendix .......................................................                                                                                          316

             O.     Communication No. 502/1992, S. M. v. Barbados

                       (decision adopted on 31 March 1994, fiftieth session) ..........                                                                 318

             P.      Communication No. 504/1992, Denzil Roberts v. Barbados

                       (decision adopted on 19 July 1994, fifty-first session) ........                                                                     322

             Q.     Communication No. 509/1992, A. R. U. v. the Netherlands

                       (decision adopted on 19 October 1993, forty-ninth session) .....                                                               327

             R.     Communication No. 510/1992, P. J. N. v. the Netherlands

                       (decision adopted on 19 October 1993, forty-ninth session) .....                                                               330

             S.      Communication No. 517/1992, Curtis Lambert v. Jamaica

                       (decision adopted on 21 July 1994, fifty-first session) ........                                                                     333

             T.      Communication No. 520/1992, E. and A. K. v. Hungary

                       (decision adopted on 7 April 1994, fiftieth session) ...........                                                                      336

                       Appendix .......................................................                                                                                            341

             U.     Communication No. 522/1992, J. S. v. the Netherlands

                       (decision adopted on 3 November 1993, forty-ninth session) .....                                                             342

             V.     Communication No. 524/1992, E. C. W. v. the Netherlands

                       (decision adopted on 3 November 1993, forty-ninth session) .....                                                             346

             W.    Communication No. 534/1993, H. T. B. v. Canada

                       (decision adopted on 19 October 1993, forty-ninth session) .....                                                               348

             X.     Communication No. 544/1993, K. J. L. v. Finland

                       (decision adopted on 3 November 1993, forty-ninth session) .....                                                             351

             Y.     Communication No. 548/1993, R. E. d. B. v. the Netherlands

                       (decision adopted on 3 November 1993, forty-ninth session) .....                                                             354

             Z.      Communication No. 559/1993, J. M. v. Canada (decision adopted

                       on 8 April 1994, fiftieth session) .............................                                                                                 357

CONTENTS (continued)

Page

           AA.     Communication No. 565/1993, A. B. v. Italy (decision adopted

                       on 8 April 1994, fiftieth session) .............................                                                                                 360

           BB.     Communication No. 567/1993, Ponsamy Poongavanam v. Mauritius

                       (decision adopted on 26 July 1994, fifty-first session) ........                                                                     362

           CC.     Communication No. 568/1993, K. V. and C. V. v. Germany

                       (decision adopted on 8 April 1994, fiftieth session) ...........                                                                      365

           DD.     Communication No. 570/1993, M. A. B., W. A. T. and J.-A. Y. T.

                       v. Canada (decision adopted on 8 April 1994, fiftieth session) .                                                               368

 XI.         RECOMMENDATION SUBMITTED BY THE COMMITTEE TO THE SUBCOMMISSION

             ON PREVENTION OF DISCRIMINATION AND PROTECTION OF MINORITIES

             CONCERNING A DRAFT THIRD OPTIONAL PROTOCOL TO THE INTERNATIONAL

             COVENANT ON CIVIL AND POLITICAL RIGHTS

XII.       LIST OF DOCUMENTS ISSUED DURING THE REPORTING PERIOD  

ANNEX IX

        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. 321/1988, Maurice Thomas v. Jamaica

                 (views adopted on 19 October 1993, forty-ninth session)

Submitted by: Maurice Thomas

Alleged victim: The author

State party: Jamaica

Date of communication: 10 July 1988

            The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

            Meeting on 19 October 1993,

            Having concluded its consideration of communication No. 321/1988, submitted to the Human Rights Committee by Mr. Maurice Thomas 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.

The facts as submitted by the author

1.         The author of the communication is Maurice Thomas, a Jamaican citizen currently awaiting execution at St. Catherine District Prison. He claims to be the victim of a violation of articles 7 and 10 of the International Covenant on Civil and Political Rights by Jamaica. a/

2.         The author states that on the evening of 9 July 1988, a contingent of soldiers conducted a search in a block of St. Catherine Prison. At the end of their search, some of the soldiers were directed to the death row section where the author and 16 other inmates were detained. The soldiers were accompanied by several prison warders, whom the author mentions by name. Both the soldiers and the warders are said to have maltreated the inmates, including the author. In particular, the author claims that he was severely beaten with rifle butts and that he sustained injuries in his chest, his back, his left hip and his lower abdomen. Moreover, one of the soldiers wounded him in the neck with a bayonet and tore his clothes. The author adds that following the beatings he was thrown back into his cell and left without any kind of medical attention.

The complaint and exhaustion of domestic remedies

3.1       The author claims that he is the victim of a violation of articles 7 and 10 of the Covenant.

3.2       With regard to the requirement of exhaustion of domestic remedies, the author states that he wrote to the Jamaican Minister of Justice and the Parliamentary Ombudsman. On 6 September 1988, he received a letter from the office of the former, informing him that his complaint was being investigated and that he would be contacted again at a later stage. Since then he has had no further information about the result of the investigation. The Parliamentary Ombudsman also replied to the author, that his complaint would receive "the most prompt attention possible". Notwithstanding further enquiries from the author, the Parliamentary Ombudsman has not contacted him again. The author submits that no Government official has ever visited him in prison in order to investigate the alleged incident.

3.3       The author further contends that, since he lacks the financial means to retain counsel for purposes of filing a constitutional motion to the Supreme (Constitutional) Court of Jamaica, a motion under Sections 17 and 25 of the Jamaican Constitution is not an effective remedy available to him within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.

The State party's observations

4.         The State party contends that 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.

The Committee's decision on admissibility

5.1       At its forty-second session, the Committee considered the admissibility of the communication. It noted that the author had submitted his case to the Inter-American Commission on Human Rights, but that the examination thereof was discontinued on 27 March 1990. The Committee found, therefore, that it was not precluded from considering the author's communication under article 5, paragraph 2 (a), of the Optional Protocol.

5.2       The Committee noted the State party's contention that 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 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.

5.3       On 4 July 1991, the Committee therefore declared the communication admissible in so far as it might raise issues under articles 7 and 10 of the Covenant.

Review of admissibility

6.         In its submission dated 16 February 1993, the State party maintains that the communication is inadmissible for non-exhaustion of domestic remedies. It submits that there exists no absolute obligation under the Covenant for a State party to provide legal aid. In this connection, the State party argues that the author's indigence cannot be attributed to the State party and cannot serve as a justification for not exhausting domestic remedies.

7.         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 circumstances of the instant case, constitute an available remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. There is therefore no reason to revise the Committee's earlier decision on admissibility of 4 July 1991.

Examination of the merits

8.         The State party informs the Committee, by submission of 16 February 1993, that it has ordered investigations into the author's allegations and that it will forward the results to the Committee as soon as they are available. The Committee notes that the State party was informed about the author's allegations on 17 November 1988 and that it has not concluded its investigations some 60 months after the event complained of.

9.1       The Committee has considered the communication in the light of all information made available to it by the parties, as required under article 5, paragraph 1, of the Optional Protocol. The Committee notes that the State party has confined itself to issues of admissibility. 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 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.

9.2       It remains uncontested that, on 9 July 1988, the author was assaulted by soldiers and warders, who beat him with rifle butts, as a result of which he sustained injuries in his chest, his back, his left hip and his lower abdomen, for which he did not receive medical treatment. The Committee considers that these claims have been substantiated and that the facts before the Committee amount to degrading treatment within the meaning of article 7 of the International Covenant on Civil and Political Rights and also entail a violation of article 10, paragraph 1, 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 disclose a violation of articles 7 and 10, paragraph 1, of the International Covenant on Civil and Political Rights.

11.       The Committee is of the view that Mr. Maurice Thomas, a victim of a violation of articles 7 and 10 of the International Covenant on Civil and Political Rights, is entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective remedy, including appropriate compensation. The State party is under an obligation to investigate the allegations made by the author with a view to instituting, as appropriate, criminal or other procedures against those found responsible and to take such other measures as may be necessary to prevent similar violations from occurring in the future.

12.       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/         The author's claims under articles 7 and 10 refer to the same factual background as in communication No. 320/1988 (Victor Francis v. Jamaica), views adopted on 24 March 1993 (see Official Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/40), annex XII.K).

             B. Communication No. 322/1988, Hugo Rodríguez v. Uruguay

                 (views adopted on 19 July 1994, fifty-first session)

Submitted by: Hugo Rodríguez

Victim:                                         The author

State party: Uruguay

Date of communication: 23 July 1988 (initial submission)

Date of decision on admissibility: 20 March 1992

            The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

            Meeting on 19 July 1994,

            Having concluded its consideration of communication No. 322/1988 submitted to the Human Rights Committee by Mr. Hugo Rodríguez 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 Hugo Rodríguez, a Uruguayan citizen residing in Montevideo. Although he invokes violations by Uruguay of articles 7, 9, 10, 14, 15, 18 and 19 of the International Covenant on Civil and Political Rights, he requests the Human Rights Committee to focus on his allegations concerning article 7 of the Covenant and on the State party's alleged failure properly to investigate his case, to punish the guilty and to award him appropriate compensation. The author is the husband of Lucía Arzuaga Gilboa, whose communication No. 147/1983 was also considered by the Committee. a/

The facts as submitted by the author

2.1       In June 1983, the Uruguayan police arrested the author and his wife, together with several other individuals. The author was taken by plainclothes policemen to the headquarters of the secret police (Dirección Nacional de Información e Inteligencia), where he allegedly was kept handcuffed for several hours, tied to a chair and with his head hooded. He was allegedly forced to stand naked, still handcuffed, and buckets of cold water were poured over him. The next day, he allegedly was forced to lie naked on a metal bedframe; his arms and legs were tied to the frame and electric charges were applied (picana eléctrica) to his eyelids, nose and genitals. Another method of ill-treatment consisted in coiling wire around fingers and genitals and applying electric current to the wire (magneto); at the same time, buckets of dirty water were poured over him. Subsequently, he allegedly was suspended by his arms, and electric shocks were applied to his fingers. This treatment continued for a week, after which the author was relocated to another cell; there he remained incomunicado for another week. On 24 June, he was brought before a military judge and indicted on unspecified charges. He remained detained at the "Libertad Prison" until 27 December 1984.

2.2       The author states that during his detention and even thereafter, until the transition from military to civilian rule, no judicial investigation of his case could be initiated. After the re-introduction of constitutional guarantees in March 1985, a formal complaint was filed with the competent authorities. On 27 September 1985, a class action was brought before the Court of First Instance (Juzgado Letrado de Primera Instancia en lo Penal de 4 Turno) denouncing the torture, including that suffered by the author, perpetrated on the premises of the secret police. The judicial investigation was not, however, initiated because of a dispute over the court's jurisdiction, as the military insisted that only military courts could legitimately carry out the investigations. At the end of 1986, the Supreme Court of Uruguay held that the civilian courts were competent, but in the meantime, the Parliament had enacted, on 22 December 1986, Law No. 15,848, the Limitations Act or Law of Expiry (Ley de Caducidad) which effectively provided for the immediate end of judicial investigation into such matters and made impossible the pursuit of this category of crimes committed during the years of military rule.

The complaint

3.         The author denounces the acts of torture to which he was subjected as a violation of article 7 of the Covenant and contends that he and others have been denied appropriate redress in the form of investigation of the abuses allegedly committed by the military authorities, punishment of those held responsible and compensation to the victims. In this context, he notes that the State party has systematically instructed judges to apply Law No. 15,848 uniformly and close pending investigations; the President of the Republic himself allegedly advised that this procedure should be applied without exception. The author further contends that the State party cannot, by simple legislative act, violate its international commitments and thus deny justice to all the victims of human rights abuses committed under the previous military regime.

The State party's information and observations and the author's comments thereon

4.1       The State party argues that the communication be declared inadmissible on the ground of non-exhaustion of domestic remedies. It rejects the author's contention that his complaints and the judicial proceedings were frustrated by the enactment of Law No. 15,848. First, the enactment of the law did not necessarily result in the immediate suspension of the investigation of allegations of torture and other wrongdoings, and article 3 of the law provides for a procedure of consultation between the Executive and the Judiciary. Secondly, article 4 does not prohibit investigations into situations similar to those invoked by the author, since the provision "authorizes an investigation by the Executive Power to clarify cases in which the disappearance of persons in presumed military or police operations has been denounced". Thirdly, the author could have invoked the unconstitutionality of Law No. 15,848; if his application had been accepted, any judicial investigation into the facts alleged to have occurred would have been reopened.

4.2       The State party further explains that there are other remedies, judicial and non-judicial, which were not exhausted in the case: first, "the only thing which Law No. 15,848 does not permit ... is criminal prosecution of the offenders; it does not leave the victims of the alleged offences without a remedy". Thus, victims of torture may file claims for compensation through appropriate judicial or administrative channels; compensation from the State of Uruguay may, for instance, be claimed in the competent administrative court. The State party notes that many such claims for compensation have been granted, and similar actions are pending before the courts.

4.3       Subsidiarily, it is submitted that Law No. 15,848 is consistent with the State party's international legal obligations. The State party explains that the law "did establish an amnesty of a special kind and subject to certain conditions for military and police personnel alleged to have been engaged in violations of human rights during the period of the previous ... regime .... The object of these legal normative measures was, and still is, to consolidate the institution of democracy and to ensure the social peace necessary for the establishment of a solid foundation of respect of human rights." It is further contended that the legality of acts of clemency decreed by a sovereign State, such as an amnesty or an exemption, may be derived from article 6, paragraph 4, of the Covenant and article 4 of the American Convention on Human Rights. In short, an amnesty or abstention from criminal prosecution should be considered not only as a valid form of legal action but also the most appropriate means of ensuring that situations endangering the respect for human rights do not occur in the future. The State party invokes a judgement of the Inter-American Court of Human Rights in support of its contention. b/

5.1       Commenting on the State party's submission, the author maintains that Law No. 15,848 does not authorize investigations of instances of torture by the Executive: its article 4 only applies to the alleged disappearance of individuals.

5.2       With respect to a constitutional challenge of the law, the author points out that other complainants have already challenged Law No. 15,848 and that the Supreme Court has ruled that it is constitutional.

Consideration of and decision on admissibility

6.1       At its forty-fourth session, the Committee considered the admissibility of the communication. The Committee ascertained, as it is required to do under article 5, paragraph 2 (a), of the Optional Protocol, that the matter was not being examined by the Inter-American Commission on Human Rights.

6.2       The Committee further took note of the State party's contention that the author had failed to exhaust available domestic remedies and that civil and administrative, as well as constitutional, remedies remained open to him. It observed that article 5, paragraph 2 (b), of the Optional Protocol required exhaustion of local remedies only to the extent that these are both available and effective; authors are not required to resort to extraordinary remedies or remedies the availability of which is not reasonably evident.

6.3       In the Committee's opinion, a constitutional challenge of Law No. 15,848 fell into the latter category, especially given that the Supreme Court of Uruguay has deemed the law to be constitutional. Similarly, to the extent that the State party indicated the availability of administrative remedies possibly leading to the author's compensation, the author plausibly submitted that the strict application of Law No. 15,848 frustrates any attempt to obtain compensation, as the enforcement of the law bars an official investigation of his allegations. Moreover, the author stated that on 27 September 1985 he and others started an action with the Juzgado Letrado de Primera Instancia en lo Penal, in order to have the alleged abuses investigated. The State party did not explain why no investigations were carried out. In the light of the gravity of the allegations, it was the State party's responsibility to carry out investigations, even if as a result of Law No. 15,848 no penal sanctions could be imposed on persons responsible for torture and ill-treatment of prisoners. The absence of such investigation and of a final report constituted a considerable impediment to the pursuit of civil remedies, e.g. for compensation. In these circumstances, the Committee found that the State party itself had frustrated the exhaustion of domestic remedies and that the author's complaint to the Juzgado Letrado de Primera Instancia should be deemed a reasonable effort to comply with the requirements of article 5, paragraph 2 (b).

6.4       To the extent that the author claimed that the enforcement of Law No. 15,848 frustrated his right to see certain former government officials criminally prosecuted, the Committee recalled its prior jurisprudence that the Covenant does not provide a right for an individual to require that the State party criminally prosecute another person. c/ Accordingly, this part of the communication was found to be inadmissible ratione materiae as incompatible with the provisions of the Covenant.

7.         On 20 March 1992, the Human Rights Committee decided that the communication was admissible in so far as it appeared to raise issues under article 7 of the Covenant.

The State party's observations

8.1       On 3 November 1992 the State party submitted its observations on the Committee's admissibility decision, focusing on the legality of Law No. 15,848 in the light of international law. It considered the Committee's decision to be unfounded, since the State's power to declare amnesty or to bar criminal proceedings are "matters pertaining exclusively to its domestic legal system, which by definition have constitutional precedence".

8.2       The State party emphasizes that Law No. 15,848 on the lapsing of State prosecutions was endorsed in 1989 by referendum, "an exemplary expression of direct democracy on the part of the Uruguayan people". Moreover, by a decision of 2 May 1988, the Supreme Court declared the law to be constitutional. It maintains that the law constituted a sovereign act of clemency that is fully in accord and harmony with the international instruments on human rights.

8.3       It is argued that notions of democracy and reconciliation ought to be taken into account when considering laws on amnesty and on the lapsing of prosecutions. In this context, the State party indicated that other relevant laws were adopted, including Law No. 15,737, adopted on 15 March 1985, which decreed an amnesty for all ordinary political and related military offences committed since 1 January 1962, and which recognized the right of all Uruguayans wishing to return to the country to do so and the right of all public officials dismissed by the military Government to be reinstated in their respective positions. This law expressly excluded from amnesty offences involving inhuman or degrading treatment or the disappearance of persons under the responsibility of police officers or members of the armed forces. By Law No. 15,783 of 28 November 1985, persons who had been arbitrarily dismissed for political, ideological or trade-union reasons were entitled to reinstatement.

8.4       With regard to the right to judicial safeguards and the obligation to investigate, the State party asserts that Law No. 15,848 in no way restricts the system of judicial remedies established in article 2, paragraph 3, of the Covenant. Pursuant to this law, only the State's right to bring criminal charges lapsed. The law did not eliminate the legal effects of offences in areas outside the sphere of criminal law. Moreover, the State argues, its position is consistent with the judgement of the Inter-American Court of Human Rights in the case of Velasquez Rodríguez that the international protection of human rights should not be confused with criminal justice (para. 174).

8.5       In this connection, the State party contends that "to investigate past events ... is tantamount to reviving the confrontation between persons and groups. This certainly will not contribute to reconciliation, pacification and the strengthening of democratic institutions." Moreover, "the duty to investigate does not appear in the Covenant or any express provision, and there are consequently no rules governing the way this function is to be exercised. Nor is there any indication in the Convention text concerning its precedence or superiority over other duties - such as the duty to punish - nor, of course, concerning any sort of independent legal life detached from the legal and political context within which human rights as a whole come into play ... The State can, subject to the law and in certain circumstances, refrain from making available to the person concerned the means of establishing the truth formally and officially in a criminal court, which is governed by public, not private interest. This, of course, does not prevent or limit the free exercise by such a person of his individual rights, such as the right to information, which in many cases in themselves lead to the discovery of the truth, even if it is not the public authorities themselves that concern themselves with the matter."

8.6       With regard to the author's contention that Law No. 15,848 "frustrates any attempt to obtain compensation, as the enforcement of the law bars an official investigation of his allegations" the State party asserts that there have been many cases in which claims similar to that of the author have succeeded in civil actions and that payment has been obtained.

9.         The State party's submission was transmitted to the author for comments on 5 January 1993. In spite of a reminder dated 9 June 1993, no comments were received from the author.

The Committee's views on the merits

10.       The Committee has taken due note of the State party's contention that the Committee's decision on admissibility was not well founded.

11.       Even though the State party has not specifically invoked article 93, paragraph 4, of the Committee's rules of procedure, the Committee has ex officio reviewed its decision of 20 March 1992 in the light of the State party's arguments. The Committee reiterates its finding that the criteria of admissibility of the communication were satisfied and holds that there is no reason to set aside the decision.

12.1      With regard to the merits of the communication, the Committee notes that the State party has not disputed the author's allegations that he was subjected to torture by the authorities of the then military regime in Uruguay. Bearing in mind that the author's allegations are substantiated, the Committee finds that the facts as submitted sustain a finding that the military regime in Uruguay violated article 7 of the Covenant. In this context, the Committee notes that, although the Optional Protocol lays down a procedure for the examination of individual communications, the State party has not addressed the issues raised by the author as a victim of torture nor submitted any information concerning an investigation into the author's allegations of torture. Instead, the State party has limited itself to justifying, in general terms, the decision of the Government of Uruguay to adopt an amnesty law.

12.2      As to the appropriate remedy that the author may claim pursuant to article 2, paragraph 3, of the Covenant, the Committee finds that the adoption of Law No. 15,848 and subsequent practice in Uruguay have rendered the realization of the author's right to an adequate remedy extremely difficult.

12.3      The Committee cannot agree with the State party that it has no obligation to investigate violations of Covenant rights by a prior regime, especially when these include crimes as serious as torture. Article 2, paragraph 3 (a) of the Covenant clearly stipulates that each State party undertakes "to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity". In this context, the Committee refers to its general comment No. 20 (44) on article 7, d/ which provides that allegations of torture must be fully investigated by the State:

"Article 7 should be read in conjunction with article 2, paragraph 3 .... The right to lodge complaints against maltreatment prohibited by article 7 must be recognized in the domestic law. Complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective ....

"The Committee has noted that some States have granted amnesty in respect of acts of torture. Amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible."

The State party has suggested that the author may still conduct private investigations into his torture. The Committee finds that the responsibility for investigations falls under the State party's obligation to grant an effective remedy. Having examined the specific circumstances of this case, the Committee finds that the author has not had an effective remedy.

12.4      The Committee moreover reaffirms its position that amnesties for gross violations of human rights and legislation such as Law No. 15,848, Ley de Caducidad de la Pretensión Punitiva del Estado, are incompatible with the obligations of the State party under the Covenant. The Committee notes with deep concern that the adoption of this law effectively excludes in a number of cases the possibility of investigation into past human rights abuses and thereby prevents the State party from discharging its responsibility to provide effective remedies to the victims of those abuses. Moreover, the Committee is concerned that, in adopting this law, the State party has contributed to an atmosphere of impunity which may undermine the democratic order and give rise to further grave human rights violations. e/

13.       The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, is of the view that the facts before it disclose a violation of article 7, in connection with article 2, paragraph 3, of the Covenant.

14.       The Committee is of the view that Mr. Hugo Rodríguez is entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective remedy. It urges the State party to take effective measures (a) to carry out an official investigation into the author's allegations of torture, in order to identify the persons responsible for torture and ill-treatment and to enable the author to seek civil redress; (b) to grant appropriate compensation to Mr. Rodríguez; and (c) to ensure that similar violations do not occur in the future.

15.       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.

[Adopted in English, French and Spanish, the English text being the original version.]

Notes

            a/         See Official Records of the General Assembly, Forty-first Session, Supplement No. 40 (A/41/40), annex VIII.B, views adopted during the twenty-sixth session, on 1 November 1985, in which the Committee held that the facts disclosed violations of articles 7 and 10, paragraph 1, of the Covenant.

            b/        Judgement of the Inter-American Court of Human Rights in the case of Velasquez Rodríguez, given on 29 July 1988. Compare, however, the Advisory Opinion OC-13/93 of 16 July 1993, affirming the competence of the Inter-American Commission on Human Rights to find any norm of the internal law of a State party to be in violation of the latter's obligations under the American Convention on Human Rights. See also resolution No. 22/88 in case No. 9850 concerning Argentina, given on 4 October 1990, and report No. 29/92 of 2 October 1992 concerning the Uruguayan cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, in which the Commission concluded that "Law 15,848 of December 22, 1986 is incompatible with article XVIII (right to a fair trial) of the American Declaration of the Rights and Duties of Man, and articles 1, 8 and 25 of the American Convention on Human Rights". The Commission further recommended to the Government of Uruguay that it give the applicant victims or their rightful claimants just compensation, and that "it adopt the measures necessary to clarify the facts and identify those responsible for the human rights violations that occurred during the de facto period". (Annual Report of the Inter-American Commission on Human Rights, 1992-1993, p. 165).

            c/         See Official Records of the General Assembly, Forty-fourth Session, Supplement No. 40 (A/44/40), annex XI.B, communication No. 213/1986 (H. C. M. A. v. the Netherlands), declared inadmissible on 30 March 1989, para. 11.6; and ibid., Forty-fifth Session, Supplement No. 40 (A/45/40), annex X.J, communication No. 275/1988 (S. E. v. Argentina), declared inadmissible on 26 March 1990, para. 5.5.

            d/        Adopted at the Committee's forty-fourth session, in 1992; see Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex VI.A.

            e/         See the comments of the Committee on Uruguay's third periodic report under article 40 of the Covenant, adopted on 8 April 1993, Official Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/48), chap. III.

       C. Communication No. 328/1988, Roberto Zelaya Blanco v. Nicaragua

           (views adopted on 20 July 1994, fifty-first session)

Submitted by:              Myriam Zelaya Dunaway and Juan Zelaya,

                                             later joined by their brother, the alleged victim

Victim: Roberto Zelaya Blanco

State party: Nicaragua

Date of communication:                        20 July 1988 (initial submission)

            The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

            Meeting on 20 July 1994,

            Having concluded its consideration of communication No. 328/1988, submitted to the Human Rights Committee by Ms. Myriam Zelaya Dunaway and Juan Zelaya 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 communication and the State party,

            Adopts its views under article 5, paragraph 4, of the Optional Protocol.

1.         The authors of the initial communication are Myriam Zelaya Dunaway and Juan Zelaya, citizens of the United States of America of Nicaraguan origin, currently residing in the United States. They submit the communication on behalf and upon the request of their brother, Roberto Zelaya Blanco, a Nicaraguan citizen born in 1935, at the time of submission of the communication detained at the prison of Tipitapa, Nicaragua. The authors allege that their brother has been a victim of violations by Nicaragua of articles 7, 9, 10, 14 and 17 of the International Covenant on Civil and Political Rights. In March 1989, Roberto Zelaya was released from detention on the basis of a governmental pardon, and on 19 June 1992 he confirmed the contents of the communication and joined his sister and brother as co-author. He now resides in the United States together with his wife and son.

The facts as submitted by the authors

2.1       Roberto Zelaya Blanco, an engineer and university professor, was arrested without a warrant on 20 July 1979, the day after the assumption of power by the Sandinista Government. He was tried by a Peoples' Tribunal (Tribunal Especial Primero), on account of his outspoken criticism of the Marxist orientation of the Sandinistas. On 23 February 1980, he was sentenced to 30 years' imprisonment. The Tribunal Especial Primero de Apelación confirmed the sentence on 14 March 1980 without an appeal hearing.

2.2       With respect to the issue of exhaustion of domestic remedies, the authors state that because of the political situation in Nicaragua, they were for a long time unable to identify Nicaraguan lawyers willing to take up their brother's case. Only at the beginning of 1989 did Roberto Zelaya inform his family that a lawyer, J. E. P. B., had indicated his readiness to represent him.

2.3       It is submitted that several organizations, including the Inter-American Commission on Human Rights, Amnesty International, the International Commission of Jurists and the International Committee of the Red Cross (Nicaraguan Section), were apprised of Mr. Zelaya's fate and visited him in prison. The authors add that they addressed many written complaints about their brother's fate to various Nicaraguan authorities, including President Daniel Ortega and the prison management, but that they did not receive any reply.

2.4       Upon his release in March 1989, Mr. Zelaya was allegedly threatened by a prison guard, "Comandante Pedro", with the words "Be very careful. If you dare write or speak against the Sandinistas, you will regret it."

The complaint

3.1       The authors submit that there was no wrongdoing or criminal activity on the part of their brother, and that the accusations formulated against him by the Sandinistas (apología del delito; instigación para delinquir) were purely political. It is claimed that Roberto Zelaya was detained arbitrarily from July 1979 to March 1989, that he was denied a fair hearing before an independent and impartial tribunal, that he was tortured and was subjected to pseudo-medical and pharmacological experiments, to inhuman treatment and death threats while in prison, and that the correspondence between Roberto Zelaya and his family was systematically interfered with by the prison authorities.

3.2       The authors submit that their brother's health, already precarious, deteriorated as a result of his detention. They submit that asthma attacks were treated experimentally with cortisone and other drugs. Finally, other inmates and a prison warder A. V. C. are said to have made death threats against Mr. Zelaya on numerous occasions.

The State party's information and the authors' comments thereon

4.1       The State party indicates that Roberto Zelaya Blanco was released from detention pursuant to a presidential pardon of 17 March 1989 (Decreto de Indulto No. 044).

4.2       The authors submit that their brother is currently receiving specialized medical treatment for the ailments developed or aggravated during 10 years of detention, inter alia, asthma and chronic hepatitis. They add that the treatment requires frequent and prolonged hospitalization.

The Committee's decision on admissibility

5.1       The Committee ascertained, as it is required to do under article 5, paragraph 2 (a), of the Optional Protocol, that the case was not under examination by another instance of international investigation or settlement. The general investigation, by regional and intergovernmental human rights organizations, of situations affecting a number of individuals, including the author of a communication under the Optional Protocol, does not constitute the "same matter" within the meaning of article 5, paragraph 2 (a).

5.2       The Committee interpreted the State party's general submission that Mr. Zelaya Blanco had been released from detention as implying that he had been offered an appropriate remedy. However, the Committee reiterated its position that 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 should make available to the Committee all the information at its disposal; this includes, at the stage of the determination of the admissibility of a communication, the provision of sufficiently detailed information about remedies pursued by, as well as remedies still available, to victims of alleged violations of their rights. The State party did not forward such information. On the basis of the information before it, the Committee concluded that there are no further effective remedies available to Roberto Zelaya in the circumstances of his case.

5.3       The Committee observed that the authorities of any State party to the Covenant are under an obligation to investigate alleged human rights violations and to make available appropriate judicial remedies and compensation to victims of such violations, even if they are attributable to a previous administration.

5.4       The Committee considered that the authors' allegations had been sufficiently substantiated, for purposes of admissibility, and that they raised issues under articles 7, 9, 10, 14 and 17 of the Covenant.

5.5       On 20 March 1992, the Human Rights Committee decided that the communication was admissible inasmuch as it appeared to raise issues under articles 7, 9, 10, 14 and 17 of the Covenant.

The State party's observations and the authors' comments thereon

6.1       On 27 July 1992, the State party submitted that the new Government had embarked on a process of national reconciliation, without revanchism. At the same time, Nicaragua's independent judiciary now exercises an eminent role in protecting human rights. Since Mr. Zelaya enjoys all civil and political rights in Nicaragua, he is at liberty to demand compensation or any other remedy he may consider appropriate.

6.2       On 5 October 1992, Roberto Zelaya Blanco responded that he could not expect to receive any compensation from ad hoc tribunals in Nicaragua, heirs of the Tribunales Especiales de Justicia, which had convicted him and others without due process. In particular, he disputes the State party's submission that the Nicaraguan judiciary is now independent, because many judges, including those sitting in the Supreme Court, are political appointees of the former Sandinista Government. Moreover, he contends that if the new government were committed to impartial justice, it would have prosecuted motu proprio those responsible for crimes, corruption and other abuses during the years of the Sandinista administration. He further questions the commitment to human rights of the Government of Violeta Barrios de Chamorro, since she herself, as member of the then Sandinista Government (miembro de la Junta de Gobierno de Reconstrucción Nacional), had signed Decree No. 185 of 29 November 1979, which established the Tribunales Especiales de Justicia, which depended directly on the executive (poder ejecutivo) and prosecuted many former civil servants for the so-called crime of conspiracy (delito de asociación para delinquir) merely because they had been civil servants during the Somoza administration.

6.3       With regard to the confiscation of his property, the author invokes article 17 of the Universal Declaration of Human Rights, which protects the right to property, and points out that the confiscation decrees of the Sandinista Government had been signed by many of the current members of the Government, including the new President, Mrs. Violeta Barrios de Chamorro, in particular Decree No. 38 of 8 August 1979, which provided for the expropriation of former civil servants of the Somoza administration, including the medical doctors and dentists in the service of the Somoza family. The author lists three pieces of real property which he had owned and which were confiscated by the Sandinista Government and subsequently sold to third parties. The author alleges that the new Government is applying dilatory tactics to frustrate the restitution of such property, and rendering the process so complicated that claimants eventually abandon their claims because of the expense involved in attempting to recuperate their property. The author concludes that what was confiscated by way of administrative measures ought to be returned to the rightful owners also by administrative decree. The author further alleges discrimination in that the confiscated property of persons who were United States citizens before 19 July 1979 has been returned, whereas the property formerly owned by Nicaraguan citizens can only be recovered through onerous litigation.

6.4       With regard to his detention, the author claims that it was unlawful and arbitrary and that he was denied due process by the revolutionary tribunals. He encloses excerpts from the Amnesty International report entitled Nicaragua:  Derechos Humanos 1986-1989, which specifically refers to its own investigation of the Zelaya case. The report concluded:

"After examining the judgment and interviewing the prisoner in November 1987, Amnesty International arrived at the conclusion that there was no evidence that could prove the criminal charges against him: no victim had been identified in relation to the accusation of murder, and as to the other charges, the victim had been only referred to as 'the people of Nicaragua'. It would seem that the conviction was predicated on Mr. Zelaya Blanco's open anti-Sandinista position in the pre-revolutionary period and on his various journalistic publications ..." a/

6.5       The author further describes the torture and ill-treatment to which he was allegedly subjected. On 11 October 1979, he and other detainees were taken out of their cells by mercenaries of Argentinian nationality, Che Walter and Che Manuel. At 9 a.m. they were taken to an office where they were beaten. In particular, he claims that he was handcuffed and hanged with a chain from the roof of the office. He was allegedly asked to sign a confession concerning the assassination of Pedro Joaquin Chamorro, the husband of the current President of Nicaragua. The text of the confession was read out to him by D. M. R., the legal counsel to the Police Commander. He categorically refused to sign any such statement, in spite of threats. At 1 p.m., the interrogators returned with one of the most notorious torturers of the Dirección General de Seguridad del Estado, but he continued to refuse to sign any confession, whereupon Che Manuel, J. M. S. and R. C. G. proceeded to administer beatings all over his body until 7 p.m. At 11 p.m., the chains were removed, and he fell to the floor, where he was kicked by the same interrogators. He was then driven out of town, where he and 15 other prisoners were to be executed. Someone read out the death sentences ordered by the Junta de Gobierno de Reconstrucción Nacional. Whereas the other 15 were killed, he was not. Although he does not remember clearly what happened, it appears that he passed out and only regained consciousness sometime after the shooting, when he was lying on the ground and still handcuffed. At 2 a.m. on 12 October 1979, he was taken to Managua to the offices of the Dirección General de Seguridad del Estado, where he was received by "Compañero Ernesto", who removed his handcuffs. At 6.30 a.m., he was taken to a house that had been used as a dormitory of the former Oficina de Seguridad Nacional and interrogated there by "Comandante Pedro", whose real name was R. B., who also took his Bulova wristwatch, his wedding ring and his wallet containing 400 cordobas. He names five witnesses who saw him arrive at the offices of the Dicrección General de Seguridad del Estado. At around noon Comandante Pedro, together with J. R. (Compañero Patricio) and H. I. (Capitán Santiago), came to pick him up, handcuffed and took him to a room where he was again chained, partially suspended from the ceiling. He was told that the academic and administrative cadres of the University of Nicaragua were full of agents of the CIA and that he should endorse a declaration prepared for his signature, denouncing, inter alia, some of his University colleagues, Professors E. A. C., F. C. G., J. C. V. R. and A. F. V. When he refused to sign the declaration, because he never had any contact or relationship with the CIA, he was beaten by Comandante Pedro, Compañero Patricio and Capitán Santiago. He was then left in peace for a few weeks, but on 7 November 1979 he was again handcuffed, blindfolded and taken by Comandante Pedro to a place where two truckloads of prisoners were being assembled. He was forced to board one of the trucks and was driven out of town, where the prisoners were made to climb down and walk to a spot where they were ordered to kneel; approximately 30 of them were shot with a bullet to the back of the head. The surviving 10 were taken elsewhere. He was told not to speak of what he had witnessed because his wife and son would be made to suffer for it.

6.6       On 26 November 1979, the author and 23 other prisoners were taken to a new prison establishment near the international airport of Managua, the Centro de Rehabilitación Social y Política, under Comandante V. J. G., who allegedly personally assassinated several guards of the former Somoza Government.

6.7       On 7 December, after two months of incomunicado detention, he was allowed to be visited by his wife. He learned from her that their home had been ransacked on 12 October by forces of the Dirección General de Seguridad del Estado, which beat up his then pregnant wife, causing a miscarriage, and stole jewels and other items of personal property.

6.8       On 26 March 1980 at 11 p.m., he was transferred, together with some 29 other political prisoners, to the Carcel Modelo, which was more like a concentration camp where the inmates had been so undernourished, he claims, that they looked like figures from Buchenwald. Because of the torture and the fear of being summarily executed, the prisoners appeared traumatized. Moreover, family visits were not allowed, nor was the sending of food packages. Responsible for the abuses were F. F. A., F. L. A., S. A. G. and J. I. G. C. Principal responsibility, however, lay on J. M. A., the Director of the Penitentiary system, under whose orders allegedly more than 100 political prisoners were shot.

6.9       The author claims that these crimes and abuses have not been investigated by the new Government of Nicaragua.

6.10      In a further submission of 29 March 1993, the author refers to a book by Dr. Carlos Humberto Canales Altamirano, Injusticia Sandinista. Carcel y Servicio, in which his case is frequently mentioned, in particular the subhuman prison conditions leading to his infection with hepatitis and the aggravation of his chronic asthma attacks and the responsibility of the prison doctor J.A.B. for these conditions.

7.         The author's submissions were transmitted to the State party on 5 January 1993 and 26 August 1993. In its observations of 16 July 1993, the State party does not enter the merits of the case but merely refers to article 5, paragraph 2 (b), of the Optional Protocol, indicating that the author has not availed himself of local remedies to solicit the return of his property and compensation for his imprisonment.

8.1       In a further submission dated 6 September 1993, the author comments on the State party's observations, referring to Decree No. 185 of 29 November 1979, pursuant to which the judgments of the Tribunales Especiales de Justicia were not subject to appeal or cassation. Thus, the exhaustion of local remedies was completed with the handing down of the 30-year sentence against him by the revolutionary tribunal. The author's release from imprisonment after 10 years of deprivation and abuse does not close the book on the violation of his rights under the International Covenant on Civil and Political Rights.

8.2       With regard to the issue of impunity, the author points out that the State party has not initiated any prosecution against named torturers of the prior regime and that these named persons are living in Nicaragua with perfect impunity, although their crimes have been denounced and documented. The author further alleges that the State party has failed to initiate investigation of these cases.

8.3       On 16 June 1994, the State party reiterated its position that the author has not exhausted domestic remedies as required by article 5, paragraph 2 (b), of the Optional Protocol. No submissions on the merits of the author's allegations were made.

8.4       With regard to the author's allegations that the ad hoc tribunals in Nicaragua are not impartial, the State party states that the Government has no power to intervene in their deliberations or decisions.

8.5       The State party affirms that human rights are today respected in Nicaragua and refers to the fact that the 1993 session of the Organization of American States and the ninth Interamerican Indigenous Congress were held in Nicaragua, thus manifesting that the international community recognizes Nicaragua's democratic legal order.

The Committee's views on the merits

9.1       The Committee has taken due note of the State party's submission that the author has failed to exhaust domestic remedies, since he can now address his complaints to the competent courts of the present Government of Nicaragua.

9.2       Even though the State party has not specifically invoked article 93, paragraph 4, of the Committee's rules of procedure, the Committee has ex officio reviewed its decision of 20 March 1992 in the light of the State party's arguments. The Committee welcomes the State party's readiness to examine the author's complaints and considers that such examination could be seen as a remedy under article 2, paragraph 3, of the Covenant. However, for purposes of article 5, paragraph 2 (b), of the Optional Protocol, the Committee considers that the author, who was arrested in 1979 and spent 10 years in detention, cannot, at this stage, be required to engage the Nicaraguan courts of the present administration before his case can be examined under the Optional Protocol. In this context, the Committee recalls that the communication was submitted to the Committee in 1988, at a time when domestic remedies were not available or not effective. Even if domestic remedies may now be available, the application of such remedies would entail an unreasonable prolongation of the author's quest to be vindicated for his detention and alleged ill-treatment; the Committee concludes that the Optional Protocol does not require the author, in the circumstances of his case, to further engage the Nicaraguan courts. Moreover, the Committee reiterates its finding that the criteria of admissibility under the Optional Protocol were satisfied at the time of submission of the communication and that there is no reason to set aside the Committee's decision of 20 March 1992.

9.3       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 any submission by the State party concerning the substance of the matter under consideration. Pursuant to article 4, paragraph 2, of the Optional Protocol, a State party should investigate in good faith all the allegations of violations of the Covenant made against it and 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.

10.1      With regard to the author's allegation concerning the confiscation of his property, the Committee recalls that the Covenant does not protect the right of property, as such. However, an issue under the Covenant may arise if a confiscation or expropriation is based on discriminatory grounds prohibited in article 26 of the Covenant. Although the author has stated that his property was confiscated as a consequence of his belonging to a category of persons whose political views were contrary to those of the Sandinista Government, and in a fashion that could be termed discriminatory, the Committee does not have sufficient facts before it to enable it to make a finding on this point.

10.2      In its prior jurisprudence the Committee has found that interference within a prisoner's correspondence may constitute a violation of article 17 of the Covenant. However, in the instant case the Committee lacks sufficient information to make a finding concerning a violation of the author's right to privacy under this provision.

10.3      With regard to the author's allegations that he was subjected to arbitrary detention, the Committee notes that the State party has not disputed the author's description of the reasons for his detention, i.e. his political opinions contrary to those of the Sandinista Government. The Committee has also taken note of the many annexes to the author's submissions, including the relevant report from the Nicaraguan Departamento de Seguridad del Estado and the evaluation of the case by Amnesty International. In the light of all the information before it, the Committee finds that the author's arrest and detention violated article 9, paragraph 1, of the Covenant.

10.4      As to the author's allegations that he was denied a fair trial, the Committee finds that the proceedings before the Tribunales Especiales de Justicia did not offer the guarantees of a fair trial provided for in article 14 of the Covenant. In particular, the Committee observes that the author's allegation that he was repeatedly put under duress to sign a confession against himself, in contravention of article 14, paragraph 3 (g), has not been contested by the State party.

10.5      With regard to the author's allegations of having been subjected to torture and ill-treatment, the Committee observes that the author's submissions are very detailed and that he mentions the names of the officers who ordered, participated in or were ultimately responsible for the ill-treatment. Moreover, the author has named numerous witnesses of the alleged mistreatment. In the circumstances and bearing in mind that the State party has not disputed the author's allegations, the Committee finds that the information before it sustains a finding that the author was a victim of a violation of articles 7 and 10, paragraph 1, of the Covenant.

10.6      The Committee considers violations of articles 7 and 10, paragraph 1, of the Covenant to be extremely serious, and requiring prompt investigation by States parties to the Covenant. In this context, the Committee refers to its general comment             No. 20 (44) on article 7, b/ which reds in part:

                       "Article 7 should be read in conjunction with article 2, paragraph 3 ... The right to lodge complaints against maltreatment prohibited by article 7 must be recognized in the domestic law. Complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective ...

                       "... States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible."

In this respect, the State party has indicated that the author may institute actions before the Nicaraguan courts. Notwithstanding the possible viability of this avenue of redress, the Committee finds that the responsibility for investigations falls under the State party's obligation to grant an effective remedy.

11.       The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, is of the view that the facts before it disclose violations of articles 7, 9, paragraph 1, 10, paragraph 1, and 14, paragraph 3 (g), of the Covenant.

12.       The Committee is of the view that Mr. Roberto Zelaya Blanco is entitled, under article 2, paragraph 3 (a), of the Covenant to an effective remedy. It urges the State party to take effective measures (a) to grant appropriate compensation to Mr. Zelaya for the violations suffered, also pursuant to article 9, paragraph 5, of the Covenant; (b) to carry out an official investigation into the author's allegations of torture and ill-treatment during his detention; and (c) to ensure that similar violations do not occur in the future.

13.       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.

[Adopted in English, French and Spanish, the English text being the original version.]

                                        Notes

            a/        Amnesty International, Nicaragua: Derechos Humanos 1986-1989 (London, November 1989), pp. 13-4.

            b/        Adopted at the Committee's forty-fourth session, in 1992; see Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex VI.A,, paras. 14 and 15.

             D. Communication No. 330/1988, Albert Berry v. Jamaica

                 (views adopted on 7 April 1994, fiftieth session)

Submitted by: Albert Berry (represented by counsel)

Victim: The author

State party: Jamaica

Date of communication:                                     6 May 1988

Date of decision on admissibility: 16 October 1992

            The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

            Meeting on 7 April 1994,

            Having concluded its consideration of communication No. 330/1988, submitted to the Human Rights Committee by Mr. Albert Berry 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 Albert Berry, a Jamaican citizen, born in 1964, awaiting execution at St. Catherine District Prison, Jamaica. He claims to be the victim of violations by Jamaica of articles 6, paragraph 1, 7, 9, paragraphs 3 and 4, 10, paragraphs 1 and 2 (a), 14, paragraphs 1, 3 (b) to (e) and (g) and 5, and 17 of the International Covenant on Civil and Political Rights. He is represented by counsel.

The facts as submitted by the author

2.1       On 27 March 1984, the author was arrested on a murder charge. The preliminary hearing was held on 15 June 1984. On 30 January 1985, after a three-day trial, the author was convicted and sentenced to death in the St. Ann's Circuit Court. He appealed to the Jamaican Court of Appeal on 5 February 1985. The appeal was dismissed on 21 October 1987. The Court of Appeal produced its written judgement on 11 November 1987. The author subsequently petitioned the Judicial Committee of the Privy Council for special leave to appeal. On 17 May 1990, the Judicial Committee refused leave to appeal. With this, it is submitted, available domestic remedies have been exhausted.

2.2       The author was charged with the murder of one D. G. The case for the prosecution was that, on 23 March 1984 at about 8 p.m., a group of 11 men, including D. G., were walking along the unlit main road at Maider, Parish of St. Ann. One or two of the men carried flashlights, one of which was lit. They suddenly came upon the author and two or three other unidentified men, who blocked the road and opened fire. One shot hit D. G. in the back.

2.3       The prosecution relied solely on identification evidence given by four witnesses who allegedly belonged to a rival gang. The defence was based on alibi.

2.4       According to the prosecution witnesses, the flashlight carried by one member of the group illuminated the other group of men in front of them just prior to the shooting. Each of the witnesses purportedly recognized the author, whom they knew from childhood and who, according to their statements, apparently was not wearing a mask. The witnesses were unable to identify the other men, who were masked. It is stated that the witnesses gave contradictory evidence as to the number of men carrying flashlights; the number of assailants; whether the author carried a gun; the distance which separated the two groups; the lapse of time between the encounter with the assailants and the burst of gunfire; how long the gunfire lasted; the position of the author within the group of assailants; and the number of shots fired. Furthermore, it is stated that no evidence was produced that it was the author who fired the shot(s), and no motive for the shooting, or for the murder of D. G., was adduced.

2.5       The author states that during the preliminary inquiry, N. W., the police officer in charge of the investigation, who came to his cell nearly every day, and another unidentified police officer, forced him to sign a prepared statement, in which he reportedly admitted that he was in the company of the three men who shot the deceased. It appears, however, that the prosecution did not seek to produce as evidence said statement. It was not until N. W. (being the last witness for the prosecution) was called and re-examined that the issue of the alleged admission made by the author came up. Author's counsel did not raise any objection against N.W.'s evidence in this respect.

2.6       It further appears that counsel for the appeal argued that the trial judge had erred in admitting this evidence which, he submitted, was highly prejudicial to the author and which was of no probative value. The Court of Appeal, however, dismissed this ground of appeal, stating that:

"The admission in the instant case provided powerful corroboration of the evidence of visual identification, and its probative value could be of telling effect. There was never any suggestion that the statement made by the applicant after caution was other than voluntary, and it ill behoves the applicant to make no objection to the admission of the statement at the trial, and now to rely upon its allegedly prejudicial effect. We hold that the evidence of N.W. as to the admission made by the applicant was relevant and probative and was properly admitted."

2.7       The author was represented by legal aid attorneys during the preliminary hearing and on appeal. It appears from the AC Form 2 ("Particulars of Trial") that he was represented by a privately retained lawyer during the trial. A London law firm represented him pro bono before the Judicial Committee of the Privy Council.

The complaint

3.1       Counsel, in a submission of 22 June 1992, notes that there have been no executions in Jamaica since March 1988; the Government of Jamaica also considered abolishing the death penalty in Jamaica as confirmed by solicitors to the State party in 1990. Counsel further contends that under the provisions of "the Bill to amend The Offences Against The Person Act" (which at the time was being considered by the Jamaican Parliament), the author would regain his freedom under the relevant parole provisions since he has served more than seven years and he has not been convicted of a capital crime within the meaning of the Bill. a/ It is stated that, in the light of the above, the author should have a reasonable expectation not only that his sentence will be commuted, but that he will be released. Counsel submits that the author's execution would constitute an arbitrary deprivation of life contrary to article 6, paragraph 1, of the Covenant and that, in the circumstances, the renewed threat of execution could amount to a violation of article 7 of the Covenant.

3.2       Article 7 is further said to have been violated by N. W., who allegedly threatened to shoot the author if no confession statement was forthcoming. Finally, it is submitted that the constant stress and anxiety suffered as a result of prolonged detention on death row, as well as the conditions of the author's imprisonment at St. Catherine District Prison, constitute a separate violation of article 7.

3.3       The author alleges that he was not cautioned by the police before his interrogation. Counsel points out that the author was detained for two and a half months before he was brought before an examining magistrate. During that time, the author did not benefit from legal representation. This, coupled with the fact that it took another seven and a half months before the author was tried, is said to amount to a violation of article 9, paragraphs 3 and 4, of the Covenant.

3.4       The author alleges a violation of article 10, paragraphs 1 and 2 (a). He claims that during the 10 months of his pre-trial detention at Brown's Town Police Station, he was not segregated from convicted persons and was not subject to separate treatment appropriate to his status as an unconvicted person. He further claims that during that period, he was kept chained. Furthermore, he alleges that he was hit in the face by a policeman on one of the three days of his trial when he was brought back to his cell, and that he has been exposed to random brutality by the prison guards on death row.

3.5       It is stated that on the first day of the trial, the author's attorney was not present in court. On that occasion, the author was represented by the attorney's assistant, one Mr. S. It is submitted that the author complained to Mr. S. about the foreman of the jury, whom he believed to be prejudiced against him. Mr. S., however, raised no objections. Counsel submits the transcript of a letter, dated 22 January 1988, from the author's mother to the author, from which it would appear that the foreman was bribed to ensure that the author was convicted. Furthermore, it is submitted that the four prosecution witnesses had a grudge against Mr. Berry. They allegedly belonged to a gang who terrorized the community where the author lived, and had tried to kill him more than once.

3.6       Counsel, while conceding that it is not in principle for the Committee to evaluate facts and evidence in a particular case or to review specific instructions by the judge to the jury, contends that the Committee's reservations thereon have so far been confined to instructions by the judge to the jury. Counsel argues that, in the circumstances of the author's case, the presence in the jury of a biased person is a matter that warrants examination by the Committee.

3.7       The author claims that, during the preliminary hearing and on appeal, he was not represented by counsel of his choosing, and that he did not have adequate time and facilities for the preparation of his defence, in breach of article 14, paragraph 3 (b) of the Covenant. He indicates that only on the day the preliminary hearing began did the examining magistrate appoint a lawyer. As a result, he had only one hour and forty minutes to communicate with his lawyer. As to his appeal, the author states that he was again assigned a lawyer without his consent; he submits that he only met once with this lawyer, for fifteen minutes, between 21 and 25 February 1988, about four months after losing his appeal. Finally, the author claims that he did not have time and facilities for the preparation of his trial. He affirms that he met with his attorney only three times before the trial, each time for no more than thirty minutes. During the trial, the attorney met with him only a few times.

3.8       Counsel points out that the author filed his application for leave to appeal on 5 February 1985 and that his legal representative filed the supplementary grounds of appeal on 20 October 1987, only one day before the Court of Appeal hearing took place. It is submitted that the lapse of time between the filing of the original grounds and that of the supplementary grounds of appeal was the result of the fact that the author did not have the assistance of a lawyer, and that the delay in the hearing of the appeal (more than two and a half years) amounts to a violation of article 14, paragraph 3 (c), of the Covenant.

3.9       The author complains that he was excluded from the hearing of his appeal, in breach of article 14, paragraph 3 (d), despite the fact that he had expressed his wish to be present in court. Counsel notes that an appellant is not entitled to be present at the hearing of an application for leave to appeal, but that in the author's case the hearing of the application for leave to appeal was treated as the hearing of the appeal, and he would thus have been entitled to be present. Furthermore, counsel submits that as the author did not have the opportunity to instruct his representative for the appeal prior to the hearing, and as his attorney at the trial failed to raise the issues of the foreman of the jury and the author's ill-treatment by the police, the author was denied an effective appeal, in breach of article 14, paragraph 5. Counsel refers to the Committee's views on communication No. 248/1987 (Glenford Campbell v. Jamaica), b/ where it held that the combined effect of the lawyer's failure to bring the defendant's maltreatment before the court, the consequences that failure had on the conduct of the appeal and the lack of an opportunity to instruct counsel for the appeal or to defend himself in person, amounted to a denial of effective representation in the judicial proceedings and non-compliance with the requirements of article 14, paragraph 3 (d), of the Covenant.

3.10      As to article 14, paragraph 3 (e), it is submitted that during the trial the author was denied the right to have his mother and three of his sisters examined as witnesses for the defence. It is further submitted that counsel ignored the author's instructions to call witnesses other than his brother-in-law.

3.11      Concerning the allegation that Mr. Berry was forced to sign a confession, in breach of article 14, paragraph 3 (g), counsel submits numerous letters addressed to the relevant Jamaican authorities, requesting them to make available copies of the depositions used at, and the transcript of, the author's preliminary hearing. He explains that one of the reasons for doing so has been to identify to what extent statements made by the witnesses at the trial differed from their statements at the preliminary hearing. Counsel complains that all his endeavours to obtain said documents have been futile.

3.12      Finally, the author claims that the warders at St. Catherine District Prison have repeatedly interfered with his correspondence, in violation of article 17, paragraph 1. He contends that books sent to him have been withheld and that his letters sent through the prison office have never reached the addressees. In this context, it is submitted that, in May of 1991, inmates found a room packed with letters and documents from and to death row prisoners. The author reportedly complained to the Parliamentary Ombudsman about this finding but has not received any reply to date. This is said to amount to a violation of article 17, paragraph 2, of the Covenant.

3.13      With respect to the requirement of exhaustion of domestic remedies, it is submitted that an application to the Supreme (Constitutional) Court would not be an available and effective remedy in the author's case, as legal aid is not given for this purpose and the author himself does not have the means to secure legal representation in Jamaica to see a constitutional motion argued on his behalf.

The State party's observations

4.         In its submission, dated 18 April 1989, the State party contended that the communication was inadmissible because of non-exhaustion of domestic remedies, since at the time of the submission it was still open to the author to petition the Judicial Committee of the Privy Council. On 1 July 1992, a further submission from author's counsel with fresh allegations was transmitted to the State party, providing it with the opportunity to comment on the admissibility of these new claims. The State party's comments in this respect were only received after the Committee declared the communication admissible (see para. 6.1 below).

The Committee's decision on admissibility

5.1       During its forty-sixth session, the Committee considered the admissibility of the communication. It noted that the author's petition for special leave to appeal to the Judicial Committee of the Privy Council had been dismissed, and that the State party had not, at that time, raised any further objections in respect of the admissibility of the communication.

5.2       With regard to the author's claims under article 17, the Committee considered that they had not been substantiated, for purposes of admissibility, and that, in this respect, the author had no claim within the meaning of article 2 of the Optional Protocol.

5.3       On 16 October 1992, the Committee declared the communication admissible in so far as it appeared to raise issues under articles 6, 7, 9, paragraphs 3 and 4, 10 and 14 of the Covenant.

The State party's request for review of admissibility and information on the merits of the communication

6.1       In its submission dated 26 October 1992 (received only after the Committee declared the communication admissible), the State party argues that the communication is inadmissible because of non-exhaustion of domestic remedies. It states that the rights under the Covenant which allegedly are violated in the author's case are similar to those contained in the Jamaican Constitution. Under section 25 of the Constitution, it would be open to the author to seek redress for the alleged violations of his constitutional rights before the Supreme (Constitutional) Court of Jamaica.

6.2       Moreover, with regard to the alleged violations of article 9, paragraphs 3 and 4, of the Covenant, the State party argues that, at all times during his detention, the author could have applied to the courts for a writ of habeas corpus to have the reasonableness of his detention tested. It is submitted that the author's failure to avail himself of this remedy cannot be attributed to the State party.

6.3       The State party notes that "the author's complaints under article 14, paragraph 1, relate to the conduct of the trial including jury selection and bias of prosecution witnesses". It further contends that "the alleged breach of article 14, paragraph 3 (g), relates to the authenticity of a confession statement, which is a matter of evidence". With reference to the Committee's jurisprudence, the State party submits that these claims fall outside the scope of the Committee's competence.

7.1       In its submission of 1 July 1993, the State party reiterates that the communication should be considered inadmissible because of non-exhaustion of domestic remedies and requests the Committee to review its decision of 16 October 1992 accordingly. With regard to the substance of the matter under consideration, it provides the following comments: as to the author's claims under article 14, paragraph 3 (b) of the Covenant, the State party submits that the material presented to the Committee does not disclose that at any time during the proceedings either counsel or the author complained to the trial judge or the Court of Appeal that the time or facilities allowed for the preparation of the defence were inadequate.

7.2       With regard to the adequacy of the author's representation, the State party argues that the facts relied upon by the author are all attributable to his legal representative, who determined, according to his professional skills, what issues were important in the conduct of the defence.

7.3       In so far as the allegation of denial of the right to be present in court is concerned, the State party asserts that at no time did the author or his counsel indicate to the Court of Appeal that he wished to be present at the hearing of the appeal.

7.4       Finally, with regard to the author's allegation that he was denied the right to have his conviction and sentence reviewed by a higher tribunal, the State party contends that Mr. Berry is estopped from making this assertion, as he exercised this right by appealing to the Court of Appeal and to the Judicial Committee of the Privy Council.

Counsel's comments

8.1       In a submission of 16 September 1993, counsel states that Mr. Berry was notified in December 1992 that his case had been reviewed by a judge of the Court of Appeal pursuant to section 7 (2) of the Offences against the Person (Amendment) Act 1992, and that his case had been classified as a capital murder case pursuant to section 2 (1) (f) of the Act. Section 2 (1) (f) states as follows:  

"Any murder committed by a person in the cause or furtherance of an act of terrorism, that is to say, an act involving the use of violence by that person which, by reason of its nature and extent, is calculated to create a state of fear in the public or any section of the public ... shall be a capital murder".

Counsel points out that his client was indicted for murder only and subsequently convicted thereof, and that the issue of terrorism was never raised during the judicial proceedings; he argues that a subsequent addition of a charge of terrorism to his client's murder charge violates the principle of due process of law. Counsel adds that, on 8 January 1993, he applied to the Court of Appeal for review of the classification in Mr. Berry's case; the application is currently pending before the Court of Appeal. c/ Counsel submits that the above is further evidence in substantiation of the claims that the author is the victim of violations by the State party of articles 6 and 7.

8.2       With reference to the alleged breach of article 14, paragraph 3 (g) (see para. 3.11 above), counsel forwards a letter, dated 7 May 1993, from the Registrar of the Supreme Court, informing him that the authorities of the Magistrate's Court are unable to locate the depositions made at the preliminary hearing in the author's case. It is submitted that because of the State party's failure to produce the requested documents, it is impossible for the author further to substantiate his claims that the prosecution witnesses were biased and that he was forced by the police to sign a statement.

Review of admissibility

9.1       The Committee has taken note of the State party's arguments on admissibility, and of counsel's information regarding the classification review procedure in Mr. Berry's case, both submitted after the Committee's decision declaring the communication admissible.

9.2       With regard to the State party's contention that constitutional remedies are still open to the author, the Committee recalls 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 must exhaust. d/

9.3       As to counsel's claim that the author's execution would constitute an arbitrary deprivation of life contrary to article 6, paragraph 1, and that the "renewed threat of execution" would be in violation of article 7, the Committee notes that these issues are related to the classification of the author's case under the Offences against the Person (Amendment) Act 1992. The Committee further notes that an application for review of the classification in the case remains pending before the Court of Appeal of Jamaica. On the basis of this new information, the Committee decides not to proceed with the consideration of this part of the communication.

9.4       The Committee, therefore, revises its decision on admissibility in part and considers this part of the communication (see para. 3.1 above) to be inadmissible under article 5, paragraph 2 (b), of the Optional Protocol.

Examination of the merits

10.       In the light of the above, the Committee decides to proceed with its examination of the merits of the communication in so far as it relates to the remaining allegations under article 7 and in so far as it raises issues under articles 9, paragraphs 3 and 4, 10 and 14 of the Covenant.

11.1      In respect of the allegations pertaining to article 9, paragraphs 3 and 4, the State party has not contested that the author was detained for two and a half months before he was brought before a judge or judicial officer authorized to decide on the lawfulness of his detention. Instead, the State party has confined itself to the contention that, during his detention, the author could have applied to the courts for a writ of habeas corpus. The Committee notes, however, the author's claim, which remains unchallenged, that throughout this period he had no access to legal representation. The Committee considers that a delay of over two months violates the requirement, in article 9, paragraph 3, that anyone arrested on a criminal charge shall be brought "promptly" before a judge or other officer authorized by law to exercise judicial power. In the circumstances, the Committee concludes that the author's right under article 9, paragraph 4, was also violated, since he was not, in due time, afforded the opportunity to obtain, on his own initiative, a decision by a court on the lawfulness of his detention.

11.2      The Committee notes that the author's claims under article 10 of the Covenant, in respect of his treatment in pre-trial detention and in respect of his treatment on death row (see para. 3.4 above) have not been contested by the State party. In the absence of a response from the State party, the Committee will give appropriate weight to the author's allegations that, during the 10 months of his pre-trial detention at Brown's Town Police Station, he was not segregated from convicted persons, was not subject to separate treatment appropriate to his status as an unconvicted person and was kept chained. Furthermore, he was hit in the face by a policeman on one of the days of his trial when he was brought back to his cell. In the opinion of the Committee, therefore, he was not treated in accordance with article 10, paragraphs 1 and 2 (a), of the Covenant. As to the author's claim that he has been exposed to random brutality on death row, the Committee notes that no further details have been offered on this claim. It therefore finds no violation of article 10 in this respect.

11.3      As to the author's claim that he did not receive a fair trial, under article 14 of the Covenant, because of the presence in the jury of an allegedly biased person and the use of evidence against him which was allegedly obtained under duress, the Committee observes that these issues were not raised during the trial. Furthermore, the written judgement of the Court of Appeal reveals that the issue of self-incrimination without prior cautioning by the police was raised during the trial, when N. W. testified that the author had made his statement after police cautioning. Neither counsel nor the author contended at the trial that he had not been cautioned. The Committee is of the opinion that the failure of the author's representative to bring these issues to the attention of the trial judge, which purportedly resulted in the negative outcome of the trial, cannot be attributed to the State party, since the lawyer was privately retained. The Committee, therefore, finds no violation of article 14, paragraph 1, of the Covenant in this respect.

11.4      The right of an accused person to have adequate time and facilities for the preparation of his defence at trial is an important element of the guarantee of a fair trial and an important aspect of the principle of equality of arms. In cases in which a capital sentence may be pronounced on the accused, it is axiomatic that sufficient time must be granted to the accused and his counsel to prepare the defence for the trial. The determination of what constitutes adequate time requires an assessment of the individual circumstances of each case. The author also contends that he was unable to obtain the attendance of witnesses other than his brother-in-law. The Committee notes, however, that the material before it does not reveal that 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. If counsel or the author felt that they were not properly prepared, it was incumbent upon them to request an adjournment. Furthermore, there is no indication that counsel's decision not to call other witnesses was not based on the exercise of his professional judgement, or that, if a request to call the author's mother and sisters to testify had been made, the judge would have disallowed it. Accordingly, there is no basis for a finding of a violation of article 14, paragraphs 3 (b) and (e), in respect of the trial.

11.5      As to the author's claim in respect of the delay in the hearing of his appeal, the Committee notes that the author's application for leave to appeal to the Court of Appeal, dated 5 February 1985, indicates that he wished the Court to assign legal aid to him. However, it also appears from the application that the author answered the question whether he had any means to obtain a legal representative himself in the affirmative. On the basis of the information before it, the Committee is unable to ascertain whether or not the delay in the filing of the supplementary grounds of appeal was attributable to the author himself. In this context, the Committee notes that the author has not indicated when he informed the judicial authorities that he did not have the means to privately retain a lawyer and when he learned that legal aid counsel had been assigned to him.

11.6      As to the author's claims under article 14, paragraphs 3 (b), (d) and 5, concerning the conduct of his appeal, the Committee begins by noting that a lawyer was assigned to the author for purposes of his appeal, and that article 14, paragraph 3 (d), does not entitle an accused to choose counsel provided to him free of charge. The Committee further notes that the author's claim that he did not have the opportunity to instruct counsel for the appeal prior to the hearing has not been contested by the State party. In communication No. 248/1987 (Glenford Campbell v. Jamaica), b/ the Committee held that the combined effect of the lawyer's failure to raise objections at the trial in respect of the confessional evidence allegedly obtained through maltreatment, the consequences this failure had on the conduct of the appeal and the lack of an opportunity to instruct counsel for the appeal or to defend himself in person amounted to a denial of effective representation in the judicial proceedings and non-compliance with the requirements of article 14, paragraph 3 (d), of the Covenant. The Committee notes, however, that in the present case the author would not have been allowed, unless special circumstances could be shown, to raise issues on appeal that had not previously been raised by counsel in the course of the trial. In the circumstances, and taking into account that the author's appeal was in fact heard by the Court of Appeal, the Committee finds no violation of article 14, paragraphs 3 (b), (d) and 5, of the Covenant.

11.7      As to the claim under article 14, paragraph 3 (g), juncto article 7, the Committee recalls that the wording of article 14, paragraph 3 (g), that no one shall be "compelled to testify against himself or to confess guilt", must be understood in terms of the absence of any direct or indirect physical or psychological pressure from the investigating authorities on the accused with a view to obtaining a confession of guilt. A fortiori, it is unacceptable to treat an accused person in a manner contrary to article 7 of the Covenant in order to extract a confession. The Committee notes that, in the present case, the author claims that the investigating officer, N. W., threatened to shoot him and forced him to sign a prepared statement; this claim has not been contested by the State party. On the other hand, the Committee notes that N. W. testified during the trial that the author had made his statement after police cautioning. The Committee observes that, in order to reconcile these different versions, the written depositions made and used during the preliminary hearing were required. The Committee further observes that counsel has requested the State party, on several occasions, to make available to him the transcript of the author's preliminary hearing, including the depositions of witnesses, and that finally, after several reminders, he was informed by the judicial authorities that they were unable to locate them. These allegations have not been denied by the State party and therefore due weight must be given to the author's claims. In this respect, therefore, the Committee finds a violation of article 14, paragraph 3 (g), juncto article 7, of the Covenant.

11.8      With regard to the claim that Mr. Berry's prolonged stay and the conditions of detention on death row constitute cruel, inhuman or degrading treatment, the Committee notes that these issues have not been further substantiated. The Committee recalls its jurisprudence that authors must substantiate allegations of violations of their Covenant rights under the Optional Protocol; mere affirmations unbuttressed by substantiating evidence do not suffice. In this case, the author has failed to show that he is the victim of a violation by the State party of article 7 of the Covenant on account of his prolonged detention on death row.

12.       The Committee is of the opinion that the imposition of a sentence of death upon the conclusion of judicial proceedings 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. In the instant case, while a constitutional motion to the Supreme (Constitutional) Court might in theory still be available, it would not be an available remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol, for the reasons set out in paragraph 9.2 above. As the Committee observed in its general comment 6 (16), the provision that a death sentence 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". e/ Accordingly, it may 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.

13.       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, 9, paragraphs 3 and 4, 10, paragraphs 1 and 2 (a), and 14, paragraph 3 (g) juncto article 7, of the Covenant.

14.       The Committee is of the view that Mr. Albert Berry is entitled to an appropriate remedy entailing his release. It requests the State party to provide information, within 90 days, on any relevant measures taken by the State party in compliance with the Committee's views.

[Adopted in English, French and Spanish, the English text being the original version.]

Notes

            a/        On 25 September 1992, the Offences against the Person (Amendment) Act 1992 was passed in the Senate. The Act provides for the classification of the cases of persons under sentence of death for murder into "capital" or "non-capital" murder. Classification as "capital" makes the death penalty mandatory; classification as "non-capital" will commute the death sentence to life imprisonment. In the latter case, the court may decide to grant parole after a period not less than seven years. In December 1992, the classification (by a single judge of the Court of Appeal) procedure began; contrary to counsel's expectations, the offence for which Mr. Berry was convicted was classified as a capital offence.

            b/        See Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex IX.D; views adopted on 30 March 1992 at the forty-fourth session, para. 6.6. 

            c/        The review process under the Act is currently stayed pending the outcome of a constitutional motion in another case, which challenges the constitutionality of the classification procedure established by the Act.

            d/        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; Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annexes IX.B and J, paras 7.1 et seq.

            e/        Official Records of the General Assembly, Thirty-seventh Session, Supplement No. 40 (A/37/40), annex V, general comment 6 (16), para. 7.

             E. Communication No. 332/1988, Devon Allen v. Jamaica

                 (views adopted on 31 March 1994, fiftieth session)

Submitted by: Devon Allen (represented by counsel)

Victim: The author

State party: Jamaica

Date of communication: 20 October 1988 (initial submission)

           The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

           Meeting on 31 March 1994,

           Having concluded its consideration of communication No. 332/1988, submitted to the Human Rights Committee on behalf of Mr. Devon Allen 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 Devon Allen, a Jamaican citizen born in 1962, currently awaiting execution at St. Catherine District Prison, Jamaica. He claims to be a victim of violations by Jamaica of articles 6, paragraph 5, 7, 9, paragraphs 2 and 3, 10, and 14, paragraphs 3 (b), (c), (d) and (e) of the International Covenant on Civil and Political Rights. He is represented by counsel. The crime of which the author was convicted has been classified as a capital offence under the Offences Against the Person (Amendment) Act 1992.

The facts as submitted by the author

2.1      Devon Allen was arrested on 18 August 1982, while he was in hospital recovering from injuries sustained in a shooting incident. He was charged with the murder, on 26 September 1980, i.e., nearly two years earlier, of one W. H. He was tried in the Home Circuit Court of Kingston between 10 and 17 May 1983, found guilty as charged and sentenced to death. On 10 November 1983, the Court of Appeal of Jamaica dismissed his appeal. The Court of Appeal did not issue a reasoned judgement but merely a "Note of Oral Judgement", also dated 10 November 1983. A further application for special leave to appeal to the Judicial Committee of the Privy Council has not been filed.

2.2      The evidence presented against Mr. Allen was that on 26 September 1980 at about 1.30 a.m., two men went to W. H.'s house in Kingston, climbed onto a roof, jumped into the yard and approached the room where W. H. was sleeping. The wife of W. H. testified that one of the men shot her husband through the half-open window; both men then broke into the house, took the television set and ran off. This was reported to the police the following morning.

2.3      During the trial, W. H.'s wife and her son, who was eight years old when the crime was committed, testified as the prosecution's principal witnesses. Both identified the author as the man who had shot W. H. Mrs. H. testified that she had known the author for several years, but under his nickname "Dap-si-Do" only. She further contended that eight days after the crime, the author had returned to her house and that, subsequently, she had occasionally seen him walking around the area.

2.4      The author denied responsibility for the shooting of W. H., claiming that he was not in the neighbourhood on the night in question and that his nickname was not "Dap-si-Do" but "Windward". He notes that the arresting officer at the hospital asked him whether he was "George Green, known as Dap-si-Do". Counsel further encloses an affidavit signed in May 1988 by the author's brother, Steve Allen, in which he indicates that in his presence and that of a person investigating the circumstances of W. H.'s death, one B. N. admitted having shot W. H. on the night in question. This was brought to the attention of the Attorney-General's Office, but the case was not reopened, as B. N. had gone into hiding and could no longer be located by the police.

2.5      In respect of the requirement of exhaustion of domestic remedies, counsel contends that delays encountered in the case justify the conclusion that domestic remedies have been "unreasonably prolonged" within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. He contends that a petition for special leave to appeal to the Judicial Committee of the Privy Council based on the issue of delay would inevitably fail, because of the similarities between the author's case and that of another Jamaican citizen, Howard Martin, whose petition was dismissed by the Privy Council on 11 July 1988. a/ Besides, leading counsel has advised that there are no proper grounds to argue a petition for special leave to appeal to the Judicial Committee.

2.6      Still in the context of domestic remedies, counsel refers to the Privy Council's jurisprudence (judgement in the case of Riley et al. v. Attorney-General of Jamaica), which holds that whatever the reasons for, or length of, delays in executing a sentence of death lawfully imposed, such delays can afford no ground for holding the execution to be in contravention of section 17 of the Jamaican Constitution. He observes that the Court of Appeal and the Supreme Constitutional Court of Jamaica would consider themselves to be bound by this jurisprudence, and that no decision in the case could be taken unless and until an appeal to the Judicial Committee of the Privy Council were allowed or made. According to counsel, the pursuit of remedies under the Jamaican Constitution and thereafter to the Judicial Committee would take many years.

The complaint

3.1      The author contends that he did not receive a fair and impartial trial. Thus, in relation to article 14, paragraph 3 (e), the trial transcript reveals that no witnesses were called on his behalf and no evidence was adduced against his claim that he was not known by the nickname "Dap-si-Do" but instead "Windward". Nor was there any evidence to rebut his statement that from 26 September 1980 until his arrest nearly two years later, he remained in the area working as a barman, without ever being questioned about W. H.'s death. Without further elaborating on his claim under article 14, paragraphs 3 (b) and (d), he submits that legal assistance available to individuals charged with criminal offences in Jamaica is such that witnesses are rarely traced and expert witnesses are hardly ever subpoenaed.

3.2      The author further alleges a violation of article 14, paragraph 3 (c) (and subsidiarily of article 9, paras. 2 and 3) because of the judicial and administrative delays in the case, and argues that a delay of five years b/ in the execution of the sentence constitutes "cruel and inhuman treatment" in violation of article 7 of the Covenant.

3.3      Finally, counsel argues that the State party may have violated article 6, paragraph 5, of the Covenant, since the author testified, during the trial in May 1983, that he was 20 years old. Accordingly, it may be that he was under the age of 18 when the offence was committed.

The State party's information and observations

4.        In its submissions under rule 91 of the rules of procedure, the State party contended that the communication was inadmissible because of non-exhaustion of domestic remedies, since the author had failed to petition the Judicial Committee of the Privy Council for special leave to appeal, pursuant to section 110 of the Jamaican Constitution.

The Committee's decision on admissibility

5.1      During its 44th 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 reasoned judgement in the case but confined itself to delivering a "Note of Oral Judgement". While taking note of the State party's contention that the Judicial Committee may hear petitions for leave to appeal even in the absence of a written judgement of the Court of Appeal, the Committee considered, basing itself on its jurisprudence, c/ that the Judicial Committee could not, in its practice, entertain petitions for leave to appeal which are not corroborated by a reasoned judgement of the Court of Appeal of Jamaica. In the circumstances, the Committee found that a petition to the Judicial Committee did not constitute a remedy that was both available and effective within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.

5.2      In respect of the author's claim under article 7, the Committee observed that the characterization of prolonged detention on death row as cruel, inhuman and degrading treatment had not been placed before the Jamaican courts and that, accordingly, domestic remedies had not been exhausted.

5.3      As to the author's allegations under articles 6, paragraph 5, and 14, paragraphs 3 (c) and (e), the Committee considered that they had been substantiated and that they deserved consideration on the merits. The author's remaining allegations were not considered substantiated, for purposes of admissibility.

5.4      On 20 March 1992, therefore, the Committee declared the communication admissible in so far as it appeared to raise issues under articles 6, paragraph 5, and 14, paragraphs 3 (c) and (e), of the Covenant; it reserved the right to review its decision in respect of the author's claim under article 6, paragraph 5, of the Covenant.

The State party's further observations and request for review of admissibility and counsel's comments

6.1      In a submission dated 2 September 1992, the State party observes that there was no violation of article 6, paragraph 5, in the author's case: the birth certificate shows that the author was born on 21 June 1962 and that, accordingly, he was no longer a juvenile at the time of the commission of the offence (26 September 1980).

6.2      The State party reiterates that the communication is inadmissible on the ground of failure of exhaustion of domestic remedies, and that the author may petition the Judicial Committee of the Privy Council even in the absence of a written judgement of the Court of Appeal, under rules 3 and 4 of the rules of procedure of the Judicial Committee.

6.3      As to the claims under article 14, paragraphs 3 (c) and (e), the State party adds that it would further be open to the author to seek redress for an alleged breach of his rights under section 20 of the Jamaican Constitution, pursuant to section 25 thereof. The State party observes that the author has "in no way substantiated allegations [that] witnesses in his favour were not called and that the issue of whether he was correctly identified was not properly explored". In the State party's opinion, the issue of correct identification is one of evidence, the review of which is the function of an appellate court and not, save in exceptional circumstances, within the competence of the Committee.

7.1      In his comments, counsel concedes that Mr. Allen was an adult when the crime was committed.

7.2      Counsel affirms that the author does not have the means to instruct a lawyer to file a constitutional motion on the issue of delay and/or any other irregularity under the Jamaican Constitution. The Poor Prisoners' Defence Act does not provide for legal aid for this purpose, and no lawyer in Jamaica has been willing to file a motion on the author's behalf on a pro bono basis. Counsel reiterates that even if the author were in the position to file such a motion, Jamaican courts would consider themselves bound by the Riley precedent (see para. 2.6 above).

7.3      As to the availability of a petition for special leave to appeal to the Privy Council, counsel recalls that the Privy Council does not act as a simple appellate court, and that it will only grant leave to appeal upon evidence that a substantial miscarriage of justice has occurred. Simple misdirections (to the jury) by a judge are not sufficient. It is therefore submitted that there are no grounds on which to petition the Judicial Committee (see para. 2.5 above).

7.4      Finally, counsel reiterates that the delays in the judicial proceedings did not arise as a consequence of the author exercising his rights of appeal, but solely as a result of "maladministration" by the State party.

Review of admissibility and consideration of the merits

8.1      The Committee has taken note of the State party's further arguments on admissibility and of counsel's further information regarding the availability of constitutional remedies in Mr. Allen's case.

8.2      With regard to the State party's contention that constitutional remedies are still open to Mr. Allen, the Committee recalls 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 provided by the State party and given that the author has not been able to secure legal assistance for this purpose, a constitutional motion does not, in the 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 must exhaust. The Committee, therefore, finds no reason to revise its decision on admissibility.

8.3      The Committee has considered the claims raised in the communication in the light of all the written information provided by the parties. In respect of the allegation of a violation of article 6, paragraph 5, the Committee observes that the State party has conclusively shown, and counsel conceded, that Mr. Allen was an adult when the crime of which he was convicted was committed. Accordingly, the Committee concludes that there has been no violation of article 6, paragraph 5.

8.4      The author contends that he did not have a fair trial within the meaning of article 14 of the Covenant, although he does not claim that the court was not impartial or the jury biased. Thus, he claims that no evidence was adduced by the prosecution to rebut his claim that he was not known by the nickname "Dap-si-Do" but as "Windward". He further observes that no evidence was put forth to rebut his testimony that from 26 September 1980 until his arrest in August 1982, he remained in the area working as a barman, without ever being questioned about W. H.'s death. The Committee observes that these claims essentially relate to the evaluation of the evidence by the domestic court. In this respect, it reiterates that it is generally for the appellate courts of States parties to the Covenant to evaluate the facts and evidence in a particular case, unless it is clear that the judge's instructions to the jury were arbitrary or amounted to a denial of justice, or that the judge violated his obligation of impartiality. After careful consideration of the material before it, the Committee concludes that the trial did not suffer from such defects. Accordingly, there is no violation of article 14, paragraph 1, in this respect.

8.5      The author alleges that the preparation and presentation of his defence were deficient, in that no witnesses were called on his behalf. More generally, he contends that legal assistance available to individuals charged with criminal offences in Jamaica is such that witnesses are rarely traced or subpoenaed (see para. 3.1 above). In respect of these claims, which were subsumed under article 14, paragraph 3 (e), in the admissibility decision of 20 March 1992, the Committee notes that the material before it does not disclose that either the author or his counsel complained to the judge that facilities for the preparation of the defence had been inadequate. Nor is there an indication that counsel decided not to call witnesses on Mr. Allen's behalf other than in the exercise of his professional judgement or that, if a request to call witnesses was made, the judge disallowed it or would have disallowed it. In the circumstances, the Committee finds no violation of article 14, paragraph 3 (e).

8.6      The analysis of the author's communication reveals that he has made two complaints in respect of the issue of delay. His initial complaint that a delay of five years in the execution of the sentence of death constitutes cruel, inhuman and degrading treatment within the meaning of article 7 of the Covenant was declared inadmissible in the Committee's admissibility decision of 20 March 1992. The author's subsequent claim, relating to administrative and judicial delays, was found admissible in respect of article 14, paragraph 3 (c). However, the substance of this claim has remained unclear, and no material in support of it has been placed before the Committee. In the circumstances, the Committee finds no violation of article 14, paragraph 3 (c).

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 do not disclose a violation of any of the provisions of the Covenant.

[Adopted in English, French and Spanish, the English text being the original version].

Notes

           a/        On 24 March 1993, the Human Rights Committee adopted its views in respect of Mr. Martin's communication, finding no violations of the Covenant (see Official Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/40), annex XII.J. Although the Judicial Committee of the Privy Council also dismissed Mr. Martin's petition, it expressed concern about the judicial delays encountered in the case.

           b/        That is, at the time of submission of the communication (October 1988).

           c/        Official Records of the General Assembly, Forty-sixth Session, Supplement No. 40 (A/46/10), annex XI.D, communication No. 253/1987 (Paul Kelly v. Jamaica), views adopted on 8 April 1991, paras. 4.1 and 5.3.

           F. Communication No. 333/1988, Lenford Hamilton v. Jamaica

               (views adopted on 23 March 1994, fiftieth session)

Submitted by: Lenford Hamilton (represented by counsel)

Alleged victim: The author

State party: Jamaica

Date of communication: 7 November 1988 (initial submission)

           The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

           Meeting on 23 March 1994,

           Having concluded its consideration of communication No. 333/1988, submitted to the Human Rights Committee on behalf of Mr. Lenford Hamilton 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 Lenford Hamilton, a Jamaican citizen under sentence of death, detained at St. Catherine District Prison, 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.

The facts as submitted by the author

2.1      The author was convicted for the shooting and killing of a policeman, Caswell Christian, on 27 February 1981 in the parish of St. Catherine. The deceased and other police officers were in the process of searching a number of houses in the ghetto area of Tawes Pen when he was shot from behind a curtain in the living room of an apartment that was being searched. It was submitted that at least two police officers had seen the author running away from the block of apartments where the shooting had taken place. The author indicates that he was not arrested until almost 17 months later, on 23 July 1982. He claims that he was not placed on an identification parade and that he was identified by confrontation only.

2.2      The author was tried in the Home Circuit Court, Kingston, from 15 to 17 November 1983. From the trial transcript, it transpires that the police officers who had arrested the author at the Central Police Station had not themselves identified the author at the scene of the crime but merely relied on the reports filed by two other police officers. One of these officers testified during the trial that he had not been able to see the face of the accused for more than a "split second".

2.3      Upon conclusion of the trial, the author was found guilty as charged and sentenced to death. He appealed to the Court of Appeal of Jamaica, which heard and dismissed the appeal on 14 January 1986. The author has since manifested his desire to file a petition for special leave to appeal with the Judicial Committee of the Privy Council, but has been unable to do so, as the Court of Appeal did not issue a reasoned judgement.

2.4      On 7 November 1988, a warrant for the execution of the author on 15 November 1988 was issued. On 14 November 1988, he was given a stay of execution, pending the outcome of representations to the Judicial Committee of the Privy Council on his behalf.

The complaint

3.        The author claims to be a victim of a violation of article 7 of the Covenant, on account of the length of time spent on death row, and of article 14, because of the Court of Appeal's failure to issue a reasoned judgement.

The State party's information and observations

4.1      In submissions dated 3 March and 7 July 1989 and 21 February 1990, the State party argues that the communication is inadmissible on the ground of non-exhaustion of domestic remedies, because the author had not yet applied to the Judicial Committee of the Privy Council for special leave to appeal.

4.2      As to the author's contention that he was prevented from filing a petition for special leave to appeal because of the absence of a reasoned judgement of the Court of Appeal, the State party argues that this statement has no basis in law or practice. It observes in this context that the Judicial Committee (General Appellate Jurisdiction) Rules Order 1982 does not stipulate that a written judgement of the Court of Appeal is a necessary prerequisite for a petition for special leave to appeal and that, in practice, the Judicial Committee has heard several petitions in the absence of a written judgement.

4.3      The State party further submits that the Court of Appeal did not issue a reasoned judgement in the author's case since it was not then the practice of the Court to do so in appeals considered to be unmeritorious.

The Committee's decision on admissibility

5.1      During its forty-fourth session in March 1992, the Committee considered the admissibility of the communication. It noted that the Court of Appeal of Jamaica had still not issued a written judgement in the author's case, although the appeal had been dismissed more than six years earlier. It concluded that in the circumstances, the application of domestic remedies had been unreasonably prolonged within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.

5.2      As to the author's allegation of a violation of article 7 of the Covenant, the Committee considered that the author had failed to substantiate this claim, for purposes of admissibility, and concluded that Mr. Hamilton had no claim within the meaning of article 2 of the Optional Protocol.

5.3      Inasmuch as the author's claims related to the evaluation of the evidence against him by the Home Circuit Court in Kingston, the Committee, by reference to its established jurisprudence, a/ considered that this part of the communication was inadmissible under article 3 of the Optional Protocol.

5.4      Finally, the Committee considered that the Court of Appeal's failure to issue a written judgement could raise issues under article 14, paragraphs 3 (c) and 5, which should be considered on the merits; accordingly, on 20 March 1992, it declared the communication admissible in respect of article 14, paragraphs 3 (c) and 5, of the Covenant.

The State party's request for a review of admissibility and counsel's comments

6.1      In a submission dated 11 February 1993, the State party reiterates that it considers the communication inadmissible on the ground of non-exhaustion of domestic remedies. It observes that Mr. Hamilton's counsel is presently in the process of pursuing two domestic remedies available to his client: firstly, a criminal appeal to the Judicial Committee of the Privy Council and, secondly, an application to the Governor-General under section 29 (1) of the Judicature (Appellate Jurisdiction) Act to have the author's case remitted to the Court of Appeal for a re-hearing. The State party submits that it is "clear that these are domestic remedies available to the author, which must be exhausted before the Committee is competent to examine the case".

6.2      The State party further argues that the author may still seek redress under section 25 of the Constitution for any alleged violation of his constitutional rights; in this context, it is noted that the right in article 14, paragraph 3 (c), of the Covenant is similar to the right protected under section 20, paragraph 1, of the Jamaican Constitution.

7.1      In his comments, counsel complains that the State party has failed to address the merits of the claims under article 14, paragraphs 3 (c) and 5. He observes that the Government of Jamaica has not made available legal aid to Mr. Hamilton to pursue his application to the Governor-General pursuant to section 29 (1) of the Judicature (Appellate Jurisdiction) Act; this remedy is not therefore available to him in practice. Similarly, no legal aid has been made available under section 25 of the Jamaican Constitution and, accordingly, this remedy is not available to Mr. Hamilton in practice either.

7.2      Counsel notes that the Court of Appeal of Jamaica heard Mr. Hamilton's application under section 29 (1) between 29 September and 1 October 1993, when judgement was reserved. To date, no judgement has been given. Counsel contends, however, that the issues that were considered by the Court of Appeal of Jamaica under section 29 (1) were entirely different from those submitted to the Human Rights Committee for consideration.

7.3      Finally, counsel observes that a Notice of Intention to apply for special leave to appeal (in forma pauperis) to the Judicial Committee could be filed without necessarily attaching a copy of the reasoned judgement of the Court of Appeal. He adds that in practice, however, the case could never be argued before the Judicial Committee without such reasons being made available to it. In this context, he recalls that an appeal to the Judicial Committee is against the "judgement" of the Court of Appeal.

Review of admissibility and considerations of merits

8.1      The Committee has taken note of the parties' arguments made in respect of admissibility. It takes the opportunity to expand on its admissibility findings.

8.2      Concerning a re-hearing of the author's case under section 29 (1) of the Judicature (Appellate Jurisdiction) Act, the Committee notes that although the author was not assigned legal aid for the purpose, he secured legal representation for it. This is evidenced by the State party's own submission of 11 February 1993 and conceded by counsel, who points to the fact that the Court of Appeal indeed did re-hear the case between 29 September and 1 October 1993. However, as counsel indicates, the issues before the Court of Appeal differ from those before the Committee, as the re-hearing concerned the re-evaluation of evidence in the case, an aspect in respect of which the communication before the Committee was declared inadmissible under article 3 of the Optional Protocol. An application pursuant to section 29 (1) of the Judicature (Appellate Jurisdiction) Act therefore is not a remedy the author is required to exhaust for purposes of the Optional Protocol, in this particular communication.

8.3      Similar considerations apply to the possibility of a petition for special leave to appeal to the Judicial Committee of the Privy Council. On the basis of the information before the Committee, it would appear that the author's case falls into the category of "fleeting glance identification", for which the Judicial Committee established precise rules and guidelines in a judgement of July 1989. b/  However, even if it could be argued that the directions of the Jamaican courts on the "fleeting glance" identification of Mr. Hamilton did not meet the guidelines established by the Judicial Committee, it is not this issue which is before the Human Rights Committee; furthermore, the absence of a reasoned judgement of the Court of Appeal is likely to prevent the author from successfully arguing his petition before the Judicial Committee although the availability of the judgement is not a precondition for lodging an application for special leave to appeal. The Committee is aware that the Judicial Committee has indicated that it can review an appeal even in the absence of a written judgement. But, as the Judicial Committee itself has noted in the recent judgement of Earl Pratt and Ivan Morgan v. Attorney-General, c/ it is in practice "necessary to have the reasons of the Court of Appeal at the hearing of the application for special leave to appeal, as without them it is not usually possible to identify the point of law or serious miscarriage of justice of which the appellant complains". Under the Committee's jurisprudence, a remedy must be effective, as well as formally available. An appeal on the merits would thus necessarily require a written judgement. Accordingly, the Committee finds that it is unnecessary, in order to exhaust local remedies, to petition the Judicial Committee for special leave to appeal in the absence of a reasoned written judgement.

8.4      As to the possibility of filing a constitutional motion pursuant to section 25 of the Jamaican Constitution, it is uncontested that no legal aid is available for the purpose. As the author would have to rely on the provision of legal aid, the Committee considers that in the absence of legal aid, a constitutional motion does not, in the circumstances of the case, constitute an available and effective remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.  Accordingly, the Committee has no reason to review its decision of admissibility of 20 March 1992.

9.1      It remains for the Committee to decide whether the failure of the Jamaican Court of Appeal to issue a reasoned written judgement violated the author's rights under article 14, paragraphs 3 (c) and 5. Article 14, paragraph 5, guarantees the right of convicted persons to have the conviction and sentence reviewed by a "higher tribunal according to law". The Committee, having noted that the failure to issue a reasoned written judgement has effectively prevented the availability of a further remedy, also finds that the author's right, under article 14, paragraphs 3 (c) and 5, to be tried without undue delay and to have his sentence reviewed by a higher tribunal according to law, has been violated.

9.2      The Committee is of the opinion that the imposition of a sentence of death upon conclusion of judicial proceedings 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 observed in its general comment 6(16), the provision that a sentence of death may only be imposed 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". d/ In the instant case, since the final sentence of death was passed and an important requirement under article 14 was not met, it must be concluded that the right protected under article 6 of the Covenant was violated.

9.3      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 article 14, paragraphs 3 (c) and 5, and consequently of article 6 of the Covenant.

10.      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. Lenford Hamilton, victim of a violation of article 14, paragraphs 3 (c) and 5, and consequently of article 6, is entitled, pursuant to article 2, paragraph 3 (a), of the Covenant, to an effective remedy entailing his release; the State party is under an obligation to ensure that similar violations do not occur in the future.

11.      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.

[Adopted in English, French and Spanish, the English text being the original version.]

Notes

           a/        See, for example, Official Records of the General Assembly, Forty-sixth Session, Supplement No. 40 (A/46/40), annex XII.E, communication No. 304/1988, (D. S. v. Jamaica) declared inadmissible on 11 April 1991, paragraph 5.2.

           b/        Oliver Whylie et al. v. the Attorney-General of Jamaica.

           c/        Judicial Committee of the Privy Council, judgement of 2 November 1993, p. 8.

           d/        Official Records of the General Assembly, Thirty-seventh Session, Supplement No. 40 (A/37/40), annex V, general comment 6(16), para. 7).

           G. Communication No. 352/1989, Dennis Douglas, Errol Gentles

               and Lorenzo Kerr v. Jamaica (views adopted on

               19 October 1993, forty-ninth session)

Submitted by: Dennis Douglas, Errol Gentles and Lorenzo Kerr

                        (represented by counsel)

Alleged victims: The authors

State party: Jamaica

Date of communication: 9 March 1989 (initial submission)

           The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

           Meeting on 19 October 1993,

           Having concluded its consideration of communication No. 352/1989, submitted to the Human Rights Committee by Messrs. Dennis Douglas, Errol Gentles and Lorenzo Kerr 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 communication, their counsel and the State party,

           Adopts its views under article 5, paragraph 4, of the Optional Protocol.

The facts as submitted by the authors

1.        The authors of the communication are Errol Gentles, Lorenzo Kerr and Dennis Douglas, three Jamaican citizens awaiting execution at St. Catherine District Prison, Jamaica. They claim to be victims of violations of their human rights by the Government of Jamaica. They are represented by counsel.

2.1      The authors were charged with the murder, on 30 August 1980 in the Parish of Clarendon, of one Howard Campbell. They were tried in the Clarendon District Court, found guilty as charged and sentenced to death on 10 April 1981. On 14 April 1983, the Jamaican Court of Appeal dismissed their appeal. A petition for special leave to appeal to the Judicial Committee of the Privy Council was dismissed on 6 October 1988.

2.2      According to the authors, Howard Campbell was sitting on a bench by the roadside in the village of Woodside, Clarendon, when a van with armed men passed through the village. These men, together with two motor-cyclists, began to molest and attack the villagers. The prosecution contended that the raiders had acted with intention to kill. In particular, they caught the deceased, beat and stabbed him to death. Furthermore, as the attack occurred during the campaign for a general election, it was suggested that it could have had political overtones.

2.3      The authors denied having taken part in the raid and testified that they had been elsewhere when the crime occurred. In particular, Mr. Gentles' uncle supported his alibi defence, testifying that he had been home with him at the time in question. The authors claim that no identification parade was held following their arrest. In this connection, Lorenzo Kerr and Errol Gentles claimed, in their petition for special leave to appeal to the Privy Council, that identification evidence was central to their case. They alleged that three police constables who testified during the trial were invited by the prosecution to identify them from the dock; this, however, happened seven months after the murder. Thus, the principal ground of appeal was that the judge, in his summing-up to the jury, misdirected the jurors on the issue of identification evidence and permissibility of dock identification, and that he erred in not pointing out the dangers inherent in such methods of identification. Moreover, they argued that the judge, in reviewing the identification evidence, did not remind the jury that, during the preliminary inquiry, one of the constables who testified against them had not stated that he had seen the authors stabbing the deceased.

2.4      The Court of Appeal, when dealing with the issue of identification evidence, rejected the authors' argument and observed: "In our view, the learned trial judge in directing the jury on the dangers inherent in visual identification had in mind R. v. Whylie. The language of the directions is the language of that case." The authors object to this reasoning and contend that the dangers inherent in dock identification are recognized by the courts in most Commonwealth countries.

2.5      For Mr. Dennis Douglas, it is claimed that the judge erred in not putting the issue of manslaughter to the jury. Without an alternative manslaughter verdict to consider, the jury was bound to convict him of murder after rejecting his alibi defence.

2.6      In a further submission from the authors, dated 11 August 1989, it is stated that the authors were victims of a miscarriage of justice, in that the police did not place them on an identification parade. It is further submitted that they did not have an opportunity to consult with their court-appointed lawyers.

The complaint

3.        Although the authors do not invoke any of the provisions of the International Covenant on Civil and Political Rights, it appears from their submissions that they claim to be victims of a violation by Jamaica of article 14 of the Covenant.

4.1      Counsel's submission of 10 February 1993 contains several fresh allegations which the Human Rights Committee is precluded from considering, since they were formulated after the Committee, on 15 March 1990, declared the communication admissible in so far as it appeared to raise issues under article 14, paragraphs 3 (b) and (d) and 5, of the Covenant.

4.2      With regard to a violation of article 14, paragraphs 3 (b) and (d), counsel submits that each author was denied adequate legal representation for their trial in that:

           (a)       All three were represented by the same junior counsel, Mr. J. H., and leading counsel, Mr. N. E. QC;

           (b)      Junior counsel was also representing the fourth co-defendant in the same trial;

           (c)       Until the first day of the trial, N. E. and J. H., together with another attorney, were also representing the fifth co-defendant. Only prior to the empanelling of the jury, this co-defendant requested to be solely represented by the other attorney.

4.3      Furthermore, the amount of time allocated to each of the authors for the preparation of the trial is said to have been insufficient for them and their representatives to prepare the defence in any meaningful way. Sufficient time was particularly important as the trial involved the preparation of complex cross-examination on the issue of identification. Moreover, the preparation of the authors' defence is said to have been prejudiced by the State party's failure to provide them or their legal representatives with the prosecution statements at a sufficiently early stage before the trial, or at all.

           Thus, with regard to Dennis Douglas' case, it is submitted that he only met with junior counsel on two occasions prior to the trial. During the first meeting in prison, the author was allegedly denied privacy and therefore could not adequately instruct counsel. Leading counsel attended only the second meeting, which took place immediately prior to the preliminary hearing on 16 October 1989, and which lasted 20 minutes. The only other opportunity to give instructions and discuss the case with his legal representatives took place at the court for five minutes each day during the trial, before the hearing started. It is further submitted that Mr. Douglas was first made aware of the prosecution case against him during the preliminary enquiry, some five months after his arrest, and that it is not clear whether he was ever shown or asked to comment on the prosecution statements prior to the trial.

           Lorenzo Kerr submits that although counsel promised to try to obtain the prosecution statements, he was never shown or asked to comment on them prior to the trial.

           As to Errol Gentles' case, it is submitted that he first met with counsel at the preliminary enquiry, for a brief interview, and that he then first learned of the prosecution case against him. He had no further meetings with either leading or junior counsel prior to the trial. It is further submitted that it is unclear whether he was ever shown or asked to comment on the prosecution statements prior to the trial.

4.4      Counsel concludes that the fact that one leading and one junior counsel (who initially represented five co-defendants) were assigned to represent all three authors prejudiced their case, since their instructions could not be adequately taken prior to and during the trial, nor could their cases be adequately presented.

4.5      As to the preparation of the appeal to the Jamaican Court of Appeal, it is submitted that the authors were not granted any privacy when consulting their legal representatives, and that the consultations were limited to 20 minutes.

4.6      Finally, counsel submits that the State party's failure to make legal aid available to the authors to pursue a constitutional motion under sections 20 and 25 of the Jamaican Constitution amounts to a violation of article 14, paragraph 5, of the Covenant. In this context, reference is made to paragraph 8.4 of the Committee's views in Communication No. 230/1987 (Raphael Henry v. Jamaica) a/, where the Committee found that the words "according to law" in article 14, paragraph 5, mean that if domestic law provides for further instances of appeal, the convicted person must have effective access to each of them.

The State party's admissibility observations and the authors' comments thereon

5.1      In its submission of 20 July 1989, 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. Although the authors' petitions for leave to appeal to the Judicial Committee of the Privy Council have been dismissed, the authors could still avail themselves of constitutional remedies.

5.2      In his comments, counsel denies that constitutional remedies remain open to his clients and submits that the authors cannot afford to retain a lawyer for the purposes of a constitutional motion. Furthermore, there is no provision in the Poor Prisoners' Defence Act for legal aid for that particular purpose; the Jamaica Council for Human Rights had made considerable but unsuccessful efforts to retain lawyers on a pro bono basis. Counsel contends that if a constitutional remedy is theoretically available to the authors, in practice this is not the case.

The Committee's decision on admissibility

6.1      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 communication was inadmissible because of the authors' failure to pursue constitutional remedies. 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 authors within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.

6.2      The Committee further considered that some of the authors' allegations pertained to the issue of the adequacy of the judge's instructions to the jury, in particular to the issue of the treatment of identification evidence and the possibility of a manslaughter verdict. The Committee reiterated that it is, in principle, beyond its competence to review specific instructions to the jury by the judge, 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.

6.3      On 15 March 1990, the Committee declared the communication admissible in respect of article 14, paragraphs 3 (b) and (d) and 5, of the Covenant.

The State party's objections to the admissibility decision and counsel's comments thereon

7.1      In a submission of 6 February 1991, the State party requests the Committee to review its decision on admissibility.

7.2      The State party submits that nothing in the Optional Protocol or in customary international law supports the contention that an individual is relieved of the obligation to exhaust domestic remedies on the mere ground that there is no provision for legal aid and that his indigence has prevented him from resorting to an available remedy. It is submitted that the Covenant only imposes a duty to provide legal aid in respect of criminal offences (art. 14, para. 3 (d)). Moreover, international conventions dealing with economic, social and cultural rights do not impose an unqualified obligation on States to implement such rights: article 2 of the International Covenant on Economic, Social and Cultural Rights provides for the progressive realization of economic rights and relates to the "capacity of implementation of States". In the circumstances, the State party argues that it is incorrect to infer from the authors' indigence and the absence of legal aid for constitutional motions that the remedy is necessarily non-existent or unavailable.

8.1      In his submission of 10 February 1993, counsel comments on the State party's request for review of the admissibility decision, pointing out that the authors were arrested in 1980, tried and convicted in 1981, and that the Jamaican Court of Appeal dismissed their appeal in 1983. It is submitted that a further appeal to the Supreme (Constitutional) Court would, in the circumstances of the case, entail an unreasonable prolongation of the application of domestic remedies.

8.2      Counsel further submits that a constitutional motion in the Supreme (Constitutional) Court of Jamaica would fail, in the light of the precedent set by the Judicial Committee's decisions in DPP v. Nasralla b/ and Riley et al. v. Attorney General of Jamaica c/, 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.

8.3      As to the State party's contention that nothing in the Optional Protocol or in customary international law supports the contention that a person is relieved of the obligation to exhaust local remedies on the ground that there is no provision for legal aid and that his indigence has prevented him from utilizing an available remedy, it is submitted that such requirement must be deemed to exist particularly in countries where indigence and poverty are common, and where those who can afford legal representation are few and far between. To do otherwise would make the provisions relating to the exhaustion of domestic remedies empty and meaningless. It cannot have been the intention of those who drafted the Optional Protocol that a State party can claim non-exhaustion where such is mainly attributable to that State party's failure to provide the author with the financial means to do so. To decide otherwise would make article 2 of the Covenant meaningless. Pursuant to that article, State parties undertake to guarantee the rights in the Covenant "without distinction of any kind, such as ... property ... or another status". To effectively limit the constitutional remedies to those who can afford the legal fees would be incompatible with the wording of the provision and the rights which the Covenant seeks to secure "without distinction of any kind".

Reconsideration of admissibility issues and examination of the merits

9.1      The Committee has taken note of the State party's request to review its decision on admissibility, as well as its criticism of the reasoning leading to the decision of 15 March 1990. It takes the opportunity to explain its admissibility findings.

9.2      The Committee notes 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. However, it also notes that, in the instant case as well as in other cases, d/ the State party indicates 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 its 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 authors do not claim that they are absolved from pursuing constitutional remedies because of their 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. As to the State party's argument that international conventions dealing with economic, social and cultural rights do not impose an unqualified obligation on States to implement such rights, the Committee observes that the question of whether remedies remain available to the author within the meaning of article 5, paragraph 2 (b), of the Optional Protocol is entirely distinct from and has no bearing on the issue of progressive realization of economic, social and cultural rights.

9.3      The Committee further observes that the authors were arrested in 1980, tried and convicted in 1981, and that their 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 15 March 1990.

10.1 The Committee notes with regret the absence of cooperation from the State party, which has not made any submission on the substance of the matters under consideration. It is implicit in article 4, paragraph 2, of the Optional Protocol, that a State party should 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 rules of procedure.

10.2 The Committee also takes the opportunity to express concern about the fact that counsel, in spite of two reminders, submitted his comments on the State party's submission two years after its receipt and only substantiated the claims almost three years after the adoption of the decision on admissibility. Paragraph 8 (d) of the Committee's decision on admissibility in the case provides that: "Any explanations or statements received from the State party shall be communicated ... to the authors and their counsel ... with the request that any comments that they may wish to submit thereon should reach the Human Rights Committee ... within six weeks of the date of the transmittal". While the submission of any comments is left to the discretion of the authors and their counsel, the Committee considers that any author or counsel who wishes to substantiate his/her claims or wishes to comment on a State party's submission, should do so in a timely manner so as to enable the Committee to conclude its examination in an appropriately expeditious way.

11.1 In respect of the authors' claims under article 14, paragraphs 3 (b) and (d), 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 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. The material before the Committee discloses that neither leading nor junior counsel nor the authors complained to the trial judge that the time or facilities for the preparation of the defence had been inadequate. The Committee notes that if the authors or counsel had felt that they were improperly prepared, it would have been incumbent upon them to request an adjournment of the trial. Moreover, the Committee cannot conclude, on the basis of the available material, that the authors' representatives were unable to represent them adequately, nor that they displayed lack of professional judgement in the conduct of the defence of their clients. The same is true for the appeal. The written judgement of the Court of Appeal reveals that each of the authors was represented before the Court by different counsel, and there is no evidence that their lawyers were unable to prepare the cases properly for the appeal. The Committee therefore finds no violation of article 14, paragraphs 3 (b) and (d).

11.2 It remains for the Committee to decide whether the failure of the State party to make legal aid available to the authors for purposes of a constitutional motion violated their rights under article 14, paragraph 5, of the Covenant. Article 14, paragraph 5, guarantees the right of convicted persons to have the conviction and sentence reviewed "by a higher tribunal according to law". In this context, the authors claim that because of the non-availability of legal aid, they are denied effective access to the Supreme (Constitutional) Court of Jamaica. In its previous jurisprudence, e/ the Committee had examined the question whether article 14, paragraph 5, guarantees the right to a single appeal to a higher tribunal or whether it guarantees the possibility of further appeals when these are provided for by the law of the State concerned. It observed that the Covenant does not require States parties to provide for several instances of appeal. It found, however, that the words "according to law" in article 14, paragraph 5, must be understood to mean that if domestic law provides for further instances of appeal, the convicted person should have effective access to each of them. The Committee observes that in the instant case, the State party provided the authors with the necessary legal prerequisites for an appeal of the criminal conviction and sentence to the Court of Appeal and to the Judicial Committee of the Privy Council. It further observes that Jamaican law also provides for the possibility of recourse to the Constitutional Court, which is not, as such, a part of the criminal appeal process. Thus, the Committee finds that the availability of legal aid for constitutional motions is not required under article 14, paragraph 5, of the Covenant. Accordingly, the Committee concludes that the authors' rights under this provision were not violated.

12.      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 do not disclose any violation of the provisions of the Covenant.

[Done in English, French and Spanish, the English text being the original version.]

Notes

           a/        See Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex IX.B.

           b/        [1967] 2 ALL ER 161.

           c/        [1982] 3 AL ER 469.

           d/        See, for example, Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex IX.J, communication No. 283/1988 (Aston Little v. Jamaica), views adopted on 1 November 1991 at the forty-third session.

           e/        Ibid., annex IX.B, communication No. 230/1987 (Raphael Henry v. Jamaica), para. 8.4.

             H. Communication No. 353/1988, Lloyd Grant v. Jamaica

                 (views adopted on 31 March 1994, fiftieth session)

Submitted by:                                  Lloyd Grant (represented by counsel)

Victim:                                            The author

State party:                                      Jamaica

Date of communication:                  24 November 1988 (initial submission)

            The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

            Meeting on 31 March 1994,

            Having concluded its consideration of communication No. 353/1988, submitted to the Human Rights Committee by Mr. Lloyd Grant 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.

The facts as submitted by the author

1.         The author of the communication is Lloyd Grant, a Jamaican citizen awaiting execution at St. Catherine District Prison, Jamaica. An earlier communication submitted by him to the Human Rights Committee was registered as communication No. 285/1988; on 26 July 1988, the Committee declared it inadmissible on the grounds of non-exhaustion of domestic remedies, since the author had not yet petitioned the Judicial Committee of the Privy Council for special leave to appeal. The decision provided for the possibility of review, pursuant to rule 92, paragraph 2, of the Committee's rules of procedure, after exhaustion of domestic remedies. On 21 November 1988, the Judicial Committee dismissed the author's petition for special leave to appeal. The author thereupon resubmitted his case. He claims to be a victim of violations by Jamaica of articles 6, 7, 10 and 14 of the International Covenant on Civil and Political Rights. He is represented by counsel.

2.1       The author and his brother, Vincent Grant, were tried in the Hanover Circuit Court between 4 and 7 November 1986 for the murder, on 2 October 1985, of one T. M. Both were convicted and sentenced to death. On 5 October 1987, the Court of Appeal of Jamaica dismissed             the author's appeal, but acquitted his brother. The author's petition for special leave to appeal to the Judicial Committee of the Privy Council was dismissed on 21 November 1988. With this, it is submitted, all available domestic remedies have been exhausted.

2.2       The author was interrogated by the police on 7 October 1985 in connection with the murder of T. M., who had been killed during a robbery at his home in the parish of Hanover, over 150 miles away from the author's home. The author explained that, while he knew the deceased from the time when he lived in Hanover, he had not visited that town since June 1985 and knew nothing about the crime. He was none the less arrested and placed in custody. On 25 October 1985, the author was placed on an identification parade, where he was identified by the deceased's wife, E. M., whom he also knew. He and Vincent Grant, who was then living in Hanover, were subsequently charged with the murder of T. M.

2.3       The prosecution's case was that the author acted in common design with his brother and a third, unidentified, man. It relied upon identification evidence of E. M. and of one D. S., and upon statements allegedly made by both defendants under caution.

2.4       E. M. testified that, in the afternoon of 1 October 1985, Vincent Grant, whom she had known all her life, entered the shop. Although she spoke to him he remained silent, staring at her house which was opposite the shop. He then left. Subsequently D. S. entered the shop and told her that he had seen Vincent Grant holding a sharp machete and leaning against the gate to her house, watching her banana field, and that two masked men, both carrying machetes, had been in the field. D. S. further told her that, despite the mask, he had recognized Lloyd Grant, who, when asked what they were doing on the M.'s premises, ran away. E. M. further testified that, after having locked the doors and windows of their house, she and her husband retired to bed; a kerosene lamp was left burning in the living room. At approximately 1 a.m., she was awakened by a noise and she went to the living room where she saw two men who immediately assaulted her. At their request, she gave them all the money kept in the house. She was then forced to lie face down on the floor, and one of the men, whom she identified as Lloyd Grant, bent over her, asking her whether she knew him. When she replied in the negative, he stood up and attacked her husband, who had entered the room. A scuffle ensued and her husband fell to the floor. Lloyd Grant, she stated, then proceeded to humiliate and assault her, during which time she had ample opportunity to see his face. E. M. finally testified that before both men left the premises, they exchanged words with a third man, who was apparently waiting for them outside in the yard.

2.5       The post-mortem examination revealed that T. M.'s death was due to haemorrhage and excessive bleeding as a result of his throat being cut, and that his neck had been broken.

2.6       In court, D. S. further testified that, on 2 October 1985, between 2 a.m. and 3 a.m., he was returning home when he saw Vincent and Lloyd Grant and an unidentified third man run away from the locus in quo.

2.7       Statements allegedly made by both defendants to the police on 7 and 11 October 1985 were admitted in evidence by the judge after a challenge on the voir dire. Vincent Grant allegedly told the police that he had been forced by his brother to accompany him and another man to T. M.'s house, but that after both men had entered the premises, he had run away. In his statement, the author identified Vincent Grant as the mastermind behind the robbery and gave details of the burglary and of his entry into T. M.'s house in the company of his brother and a third person. The author further allegedly stated that while he was outside, holding E. M., the third person came out of the house and told him that he had "chopped up" T. M.

2.8       The author put forward an alibi defence. He made an unsworn statement from the dock, claiming that he had been at his home in Kingston with his girlfriend when the crime occurred. He further claimed that he had been forced by the police to sign, on 11 October 1985, a drawn-up statement. Vincent Grant also made an unsworn statement from the dock, stating only that on 2 October 1985, he was at home with his girlfriend, that he went to bed at 5 o'clock and that he knew nothing about the murder.

2.9       With respect to the identification of Vincent Grant (who had not been identified by E. M.), the testimony of D. S. revealed that his sight had been impaired by the darkness. Before the Court of Appeal, Vincent Grant's counsel argued, inter alia, that the trial judge had failed to give the jury adequate warning about the dangers of identification evidence and, in addition, failed to relate such direction as he gave on identification to the evidence presented by D. S. The Court of Appeal agreed with counsel that the trial judge overlooked the fact that the identification evidence offered in respect of the two defendants was materially different and that each case required appropriate and specific treatment. The Court of Appeal subsequently acquitted Vincent Grant.

2.10 Author's counsel before the Court of Appeal admitted that "there was overwhelming evidence against his client, especially in the light of E. M.'s testimony", and that "although he was of the opinion that the trial judge's directions on identification in relation to the author could have been more helpful, he did not believe that any reasonable argument could be mounted in law as to what the trial judge actually said". He further admitted that "the trial judge gave proper directions on common design" and that "overall he could find no arguable ground to urge on behalf of his client". The Court of Appeal agreed with counsel, stating that, in the case of the author, it found no defects in the instructions to the jury by the judge, and that the evidence against him was "overwhelming".

2.11 Throughout his trial and appeal, the author was represented by legal aid lawyers. A London law firm represented him pro bono before the Judicial Committee of the Privy Council.

2.12 The offence for which the author has been convicted was classified, on 18 December 1992, as a capital offence under the Offences against the Person (Amendment) Act 1992. On 6 January 1993, the author applied to the Court of Appeal for review of the classification in his case. The review process under the Act is currently stayed pending the outcome of a constitutional motion in another case, which challenges the constitutionality of the classification procedure established by the Act.

The complaint

3.1       With regard to articles 7 and 10 of the Covenant, the author claims that on 8 October 1985, he was beaten by police, hit on the head with a gun and threatened with death and that another policeman fired his gun to frighten him. On 11 October 1985, he allegedly was again beaten by the police; he claims that he was whipped with an electric cable and administered electric shocks. The author further claims that on death row, visiting facilities are inadequate and that conditions in the prison are unsanitary and extremely overcrowded.

3.2       In respect of the allegation of unfair trial under article 14 of the Covenant, it is submitted that:

            (a)       The author did not receive legal advice during the preliminary hearing. It was not until one month prior to the trial that he was assigned a legal aid attorney, who did not consult with him, despite an earlier adjournment for that purpose, until the day before the start of the trial and then only for 40 minutes;

            (b)       The circumstances of the case were not investigated before the trial began. The attorney did not attempt to secure the testimony of the author's girlfriend, P. D., or of her mother. Although instructed by the author to do so, the attorney failed to contact P. D., whose evidence would have provided an alibi for the author;

            (c)       The attorney did not argue the issue of reliability of the identification by E. M. If E. M. had been asked when she had last seen the author, it would have been revealed that she had not seen him for about 10 years, when he was fourteen or fifteen years old;

            (d)       The attorney did not go through the prosecution statements with the author;

            (e)       Counsel for the appeal effectively abandoned the appeal or failed to pursue it properly. This is said to have prejudiced the author's case before the Judicial Committee of the Privy Council, which acknowledged that there might have been points of law for the Court of Appeal to look into;

            (f)        Counsel for the appeal also declined to call P. D. It is contended that the author's legal representation was inadequate and in violation of article 14, paragraph 3 (d), in respect of the proceedings before both the Circuit Court and the Court of Appeal.

The State party's information and observations

4.         By submissions of 8 May 1990 and 18 April 1991, the State party argued that the communication was inadmissible on the grounds of failure to exhaust all available domestic remedies as required by article 5, paragraph 2 (b), of the Optional Protocol, since the author had failed to avail himself of constitutional remedies in the Supreme (Constitutional) Court of Jamaica. The State party further submitted that the communication did not disclose a violation of any of the rights set forth in the Covenant.

The Committee's decision on admissibility

5.1       During its forty-fourth session, the Committee considered the admissibility of the communication. With regard to the author's claims concerning the conditions of detention on death row, the Committee noted that he had not indicated what steps, if any, he had taken to submit his grievances to the competent prison authorities, and what investigations, if any, had been carried out. Accordingly, the Committee found that in this respect domestic remedies had not been exhausted.

5.2       With regard to the allegation of ill-treatment by the police, the Committee noted that this issue was raised before the trial court, and that the State party had not provided specific information in respect of this allegation in spite of the Committee's request that it do so. The Committee observed, taking into account that the author is a poor person depending on assignment of legal aid and that legal aid is not made available for the purpose of constitutional motions, that there were no further remedies available to the author in respect of this claim.

5.3       With regard to the allegations of unfair trial, the Committee noted that the author's claims related primarily to the inadequacy of the preparation of his defence and of his representation before the Jamaican courts. It considered that these claims might raise issues under article 14, paragraphs 3 (b), (d) and (e) of the Covenant, which should be examined on the merits.

5.4       On 20 March 1992, the Committee declared the communication admissible in so far as it appeared to raise issues under articles 7, 10 and 14, paragraphs 3 (b), (d) and (e) of the Covenant.

The State party's request for review of admissibility and counsel's comments

6.1       The State party, in a submission dated 1 October 1992, maintains that the communication is inadmissible because of non-exhaustion of domestic remedies. It explains that the rights under the Covenant which allegedly were violated in the author's case are similar to the rights contained in sections 17 (1) and 20 (6) (c) and (d) of the Jamaican Constitution. Accordingly, having exhausted the criminal appellate process, it would be open to the author, under section 25 of the Constitution, to seek redress for the alleged violations of his constitutional rights before the Supreme (Constitutional) Court of Jamaica.

6.2       With regard to a violation of article 7, the State party submits that the author did not substantiate his claim; no medical evidence was produced in support of the alleged ill-treatment, nor is there any evidence that he made a complaint to the competent local authorities. It further submits that the appropriate remedy for the author for the alleged violations of his rights under articles 7 and 10 of the Covenant would be a civil action for damages for assault.

6.3       With regard to the alleged violations of article 14, paragraphs 3 (b), (d) and (e), the State party refers to an individual opinion appended to the Committee's views in communication No. 253/1987, a/ and submits that the State party's obligation to provide an accused with legal representation cannot extend beyond the duty to act in good faith in assigning counsel to the accused, and that errors of judgement made by court-appointed lawyers cannot be attributed to the State party any more than errors by privately retained lawyers can be. It concludes that the Committee would be applying a double standard if it were to hold court-appointed lawyers accountable to a higher degree of responsibility than their counterparts, and thus hold the State party responsible for their errors of judgement.

7.1       With regard to the State party's request for review of the admissibility decision, London counsel points out that the State party has failed to show that a constitutional motion would be an effective and available remedy for the author. In this context, it is submitted that a constitutional motion is not a remedy available to the author, as he does not have the means to pursue such a course of action and legal aid is not made available for this purpose. Furthermore, the author has been unable to secure legal representation in Jamaica to argue such a motion on a pro bono basis. It is submitted that, for these reasons, a constitutional motion is not an available remedy which the author is required to exhaust for purposes of article 5, paragraph 2 (b) of the Optional Protocol. In addition, the application of such remedy, and the subsequent appellate process, would entail an unreasonable prolongation of the pursuit of remedies.

7.2       As to the alleged ill-treatment in violation of articles 7 and 10 of the Covenant, counsel submits that on 8 October 1985, the author was taken from his cell (at the Central Police Station in Kingston) to an office, where four policemen proceeded to question him without caution or charge. In the course of the interrogation, the four policemen allegedly beat the author to force him to confess to the crime. The following evening, three policemen took him to the Montego Bay Police Station. On the way to Montego Bay, the policemen turned off the highway and took the author to a "lonely road", where they again questioned and beat the author, with his hands cuffed behind his back. One of the police officers hit the author on his left ear with his gun, causing it to bleed, while another police officer fired his gun close to the author's head. On 11 October 1985, two policemen took the author out of his cell to an upstairs room, where the Superintendent was waiting. In the presence of the Superintendent, the two policemen beat the author on his back with electric wire, until it began to bleed. One of the men plugged in pieces of the wire and gave the author two electric shocks to his side.

7.3       As to the inadequacy of the preparation of the author's defence and of his representation before the Jamaican courts, it is submitted that the author was not represented during police interrogation and during the preliminary hearing. In September 1986, he saw the attorney assigned to him for the trial for the first time. She reportedly requested the judge to adjourn the trial, as she needed more time to prepare the defence. The hearing was rescheduled for 3 November 1986. Although upon requesting the adjournment, the attorney promised the author that she would discuss the case with him that evening, she never came to see him. On 3 November 1986, she visited him in the court lock-up. During the interview, which lasted for only 40 minutes, she took the first statement from the author; the attorney did not investigate the circumstances of the case prior to the trial nor did she consider the author's alibi defence. The author affirms that during the course of the trial he again met with his attorney, but that she did not carry out his instructions.

7.4       With regard to the attorney's failure to pursue the evidence of the author's girlfriend, counsel forwards an affidavit, dated 4 December 1989, from P. D. and a questionnaire, dated 22 March 1990; P. D. contends that the author was with her during the whole night of 1 to 2 October 1985, and that her mother and one P. M. could have corroborated this evidence. It further appears from her affidavit that, on one of the days of the court hearing, she was informed by the police that her presence was needed, but that she failed to go because she had no money to travel and the police allegedly told her that it had no car available to transport her to the Circuit Court. According to London counsel, the main reason why witnesses were not traced and called was that the legal aid rates were so inadequate that the attorney was not able to make the necessary inquiries and initiate the necessary steps to prepare the author's defence properly.

7.5       As to the conduct of the trial defence itself, it is submitted that the attorney failed properly to challenge the testimony of E. M. and D. S., in particular with regard to their identification of the author, and that she did not make any interventions when counsel for the prosecution put leading questions to the prosecution witnesses.

7.6       With regard to the preparation of the author's defence on appeal, reference is made to the transcript of an annex to the "Privy Council questionnaire for inmate appealing" where the author claims that: "On one occasion D. C. [counsel assigned to him for the purpose of the appeal] came inside the prison and saw about 10 inmates (including myself) and I spoke with him for approximately 20 minutes. During those 20 minutes he asked me if I had any knowledge of the crime and if I have any witness. I also asked him to get my girlfriend in court and he don't". It is submitted that, since D. C. had not represented him at the trial, it was essential for the author to have adequate time to consult with D. C. prior to the hearing of the appeal, and that the amount of time granted for that purpose was wholly inadequate. The above is said to indicate that the author's rights under article 14, paragraph 3 (d) were not respected, since counsel was not of his own choosing.

7.7       With regard to the claim that D. C. abandoned or failed properly to pursue the appeal, reference is made to the written judgement of the Court of Appeal and to a letter, dated 8 February 1988, from D. C. to the Jamaica Council for Human Rights. In his letter, D. C. states: "I daresay, however, that the judge's instruction on identification was certainly not the best, but the usual safeguards were complied with and on any legal merit I cannot recommend the case for further consideration". According to London counsel, there were several grounds in the case which could have been argued on appeal, such as P. D.'s evidence (had she been called), and the reliability of the identification evidence of E. M. and D. S., especially in light of the fact that the weakness in the latter's identification concerned both defendants. b/

7.8       Further to the above comments, which relate to the claims which were before the Committee when the communication was declared admissible on 20 March 1992, counsel's comments, dated 12 March 1993, contain several new allegations relating to articles 6, 9, paragraphs 1, 2 and 3, 14, paragraphs 1, 2, 3 (c) and 5, and 15 of the Covenant. For the purpose of the present communication, these further claims have been made too late.

Examination of the merits

8.1       The Committee has taken note of the State party's request that it review its admissibility decision. It 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 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. c/ There is therefore no reason to revise the Committee's earlier decision on admissibility.

8.2       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.

8.3       As to the author's allegation of ill-treatment by the police on 8 and 11 October 1985, the Committee notes from the trial transcript that the police officers allegedly responsible were extensively cross-examined on this issue by the author's attorney both during and after the voir dire proceedings. In the absence of supporting medical evidence, the Committee is unable to find violations of articles 7 and 10 of the Covenant in the case.

8.4       Concerning the author's claims relating to the preparation of his defence and his legal representation on trial, the Committee recalls 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. The determination of what constitutes adequate time requires an assessment of the circumstances of each case. The Committee notes that the material before it does not disclose whether either the author or his attorney complained to the trial judge that the time or facilities for the preparation of the defence had been inadequate. Nor is there any indication that the author's attorney acted negligently in the conduct of the defence. In this context, the Committee notes that the trial transcript discloses that E. M. and D. S. were thoroughly cross-examined on the issue of identification by the defence. The Committee therefore finds no violations of article 14, paragraphs 3 (b) and (d), in respect of the author's trial.

8.5       The author also contends that he was unable to secure the attendance of witnesses on his behalf, in particular the attendance of his girlfriend, P. D. The Committee notes from the trial transcript that the author's attorney did contact the girlfriend, and, on the second day of the trial, made a request to the judge to have P. D. called to court. The judge then instructed the police to contact this witness, who, as indicated in paragraph 7.4 above, had no means to attend. The Committee is of the opinion that, in the circumstances, and bearing in mind that this is a case involving the death penalty, the judge should have adjourned the trial and issued a subpoena to secure the attendance of P. D. in court. Furthermore, the Committee considers that the police should have made transportation available to her. To the extent that P. D.'s failure to appear in court was attributable to the State party's authorities, the Committee finds that the criminal proceedings against the author were in violation of article 14, paragraphs 1 and 3 (e), of the Covenant.

8.6       The author also claims that the preparation of his defence and his representation before the Court of Appeal were inadequate, and that counsel assigned to him for this purpose was not of his own choosing. The Committee recalls that, 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. d/ While it is not for the Committee to question counsel's professional judgement that there was no merit in the appeal, it is of the opinion that he should have informed Mr. Grant of his intention not to raise any grounds of appeal, so that Mr. Grant could have considered any other remaining options open to him. In the circumstances, the Committee finds that the author's rights under article 14, paragraph 3 (b) and (d), were violated in respect of his appeal.

8.7       The Committee is of the opinion that the imposition of a sentence of death upon the conclusion of judicial proceedings 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. In the instant case, while a constitutional motion to the Supreme (Constitutional) Court might in theory still be available, it would not be an available remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol, for the reasons indicated in paragraph 8.1 above. As the Committee observed in its general comment No. 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". e/ In the present case, it may be concluded that the final sentence of death was passed without the proceedings having met the requirements of article 14, and that, as a result, the right to life 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 1, 3 (b), (d) and (e) of the Covenant.

10.       The Committee is of the view that Mr. Lloyd Grant is entitled to a remedy entailing his release. It requests the State party to provide information, within 90 days, on any relevant measures taken by the State party in compliance with the Committee's views.

[Adopted in English, French and Spanish, the English text being the original version.]

Notes

            a/         Official Records of the General Assembly, Forty-sixth Session, Supplement No. 40 (A/46/40), annex XI.D, communication No. 253/1987 (Paul Kelly v. Jamaica), views adopted on 8 April 1991.

            b/        It appears from the transcript of the Privy Council hearing that author's counsel before the Judicial Committee of the Privy Council argued, inter alia, that the trial judge's direction as to the evidence of E. M. was inadequate, as he had not mentioned to the jury whether any sense of fear on her part could have had an effect upon her ability to identify the assailant. Counsel further argued that the defects found by the Court of Appeal in the trial judge's direction as to the evidence of D. S. affected the author's case as much as it did his brother's, and that the jury might have come to a different conclusion in the author's case if they had been adequately directed on the evidence of D. S. Lord Keith of Kinkel replied that: "It may be so and maybe you have a Court of Appeal point on that, but that is not quite the way we approach the matter when considering whether to grant special leave. The jury might have come to a different conclusion if they had been directed about the evidence of D. S. rather more effectively than they were, that may well be, but the fact remains that you have got a very clear and positive identification by E. M.".

            c/         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; Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annexes IX.B and J, paras. 7.1 et seq.

            d/        See Official Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/40), annex XII.O, communication No. 356/1989 (Trevor Collins v. Jamaica), views adopted on 25 March 1993, para. 8.2.

            e/         Ibid., Thirty-seventh Session, Supplement No. 40 (A/37/40), annex V, general comment 6(16), para. 7.

           I. Communication No. 355/1989, George Winston Reid v. Jamaica

               (views adopted on 8 July 1994, firty-first session)

Submitted by:                                     George Winston Reid

Victim:                                               The author

State party:                                                      Jamaica

Date of communication:                                     23 February 1989 (initial submission)

Date of decision on admissibility:             25 March 1992

            The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

            Meeting on 8 July 1994,

            Having concluded its consideration of communication No. 355/1989 submitted to the Human Rights Committee by Mr. George Winston Reid 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.

The facts as submitted by the author

1.         The author of the communication is George Winston Reid, a Jamaican citizen currently detained at the General Penitentiary in Kingston, Jamaica. He claims to be a victim of a violation by Jamaica of his human rights.

2.1       The author was arrested for the murder of his girlfriend, who died of stab wounds in the Cornwall Regional Hospital on 9 January 1980. He claims to be innocent and maintains that his girlfriend was stabbed by an unidentified man in the course of a dispute in her house. The author was taken into custody and detained at Montego Bay for three and a half months. His legal aid attorney, Mr. E. Alcott, first met him about 10 minutes before the start of the trial on 22 April 1980. Without giving any details, the author claims that he was poorly defended. On 23 April 1980, he was sentenced to death. On 16 March 1981, he was notified by the Registrar of the Court of Appeal that his appeal had been dismissed on 27 February 1981. No reasoned judgement was issued, and the author's efforts to obtain copies of trial documents in his case failed.

2.2       Since 1981, the author has unsuccessfully sought legal assistance with a view to filing a petition for leave to appeal to the Judicial Committee of the Privy Council. His first representative, Mr. Alcott, emigrated. Mr. Alcott's daughter, also an attorney, declined to take the case because she did not think that there was merit in it. According to the author, the Notes of Evidence would clearly prove her wrong. He submits that he would be unable to pursue an appeal other than in forma pauperis, and that no legal aid has been made available to him.

2.3       On 19 September 1990, the author's death sentence was commuted to life imprisonment.

The complaint

3.         Although the author does not invoke any article of the International Covenant on Civil and Political Rights, it appears from his submission that he claims to be a victim of a violation by Jamaica of article 14 of the Covenant.

The State party's observations and the author's comments thereon

4.1       By submission of 7 July 1989, the State party argued that the communication was inadmissible on the grounds of failure to exhaust domestic remedies, since the author could still petition the Judicial Committee of the Privy Council for leave to appeal.

4.2       By further submission of 16 January 1992, the State party confirmed that the author's application for leave to appeal had been refused by the Court of Appeal on 27 February 1981, in an oral judgement, which has not been issued in writing.

4.3       The State party explained that "where an application for leave to appeal is heard and an oral judgement is delivered, it is not permissible in law for the presiding judge or any other judge on that panel to give a written judgement in the same case, unless he had promised to do so at the time of the application for leave to appeal. The reason for this is that once the case is heard and determined, the judges are functus officio and cannot afterwards write up a judgement and put it on the files".

5.         In his reply to the State party's submission, the author's counsel, who had agreed to represent him pro bono for purposes of a petition for special leave to appeal to the Judicial Committee of the Privy Council, stated that he had been advised by leading counsel that there were no grounds upon which to petition the Privy Council. He therefore argued that the author was without an effective domestic remedy.