A/51/40
A/51/40
United Nations
Report of the
Human Rights Committee
Volume II
General Assembly
Official Records • Fifty-first Session
Supplement No. 40 (A/51/40)
A/51/40
Report of the
Human Rights Committee
Volume II
General Assembly
Official Records • Fifty-first Session
Supplement No. 40 (A/51/40)
United Nations • New York, 1997
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 VIII and IX of the report of the Human Rights Committee. Chapters I to VIII and annexes I to VII and X are contained in volume I.
ISSN 0255-2353
[Original: English]
[7 May 1997]
CONTENTS
Chapter Paragraphs Page
I. ORGANIZATIONAL AND OTHER MATTERS
A. States parties to the International Covenant on
Civil and Political Rights
B. Sessions of the Human Rights Committee
C. Election, membership and attendance
D. Solemn declaration
E. Working groups
F. Other matters
G. Staff resources
H. Publicity for the work of the Committee
I. Documents and publications relating to the work
of the Committee
J. Adoption of the report
II. METHODS OF WORK OF THE COMMITTEE UNDER ARTICLE 40 OF
THE COVENANT: OVERVIEW OF PRESENT WORKING METHODS
A. Consideration of initial reports and periodic
reports
B. Overdue reports
C. Follow-up to the Committee's activities under
article 40
D. Observations of States parties on the Committee's
concluding comments
E. Cooperation with other treaty-monitoring bodies
F. Reports submitted by States parties under
article 40
III. SUBMISSION OF REPORTS BY STATES PARTIES UNDER
ARTICLE 40 OF THE COVENANT
A. Reports submitted by States parties under
article 40
CONTENTS (continued)
Chapter Paragraphs Page
B. Observations of States parties on the Committee's
concluding comments
C. Special decisions of the Committee concerning
reports of particular States
IV. STATES THAT HAVE NOT COMPLIED WITH THEIR OBLIGATIONS
UNDER ARTICLE 40 OF THE COVENANT
V. CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 40 OF THE COVENANT
A. United Kingdom of Great Britain and Northern
Ireland (Hong Kong)
B. Sweden
C. Estonia
D. Mauritius
E. Spain
F. Zambia
G. Guatemala
H. Nigeria (discussion at the fifty-sixth session)
I. Nigeria (continued at the fifty-seventh session)
J. Brazil
K. Peru
VI. GENERAL COMMENTS OF THE COMMITTEE
VII. CONSIDERATION OF COMMUNICATIONS UNDER THE OPTIONAL
PROTOCOL
A. Progress of work
B. Growth of the Committee's caseload under the
Optional Protocol
C. Approaches to examining communications under the
Optional Protocol
D. Individual opinions
E. Issues considered by the Committee
CONTENTS (continued)
Chapter Paragraphs Page
F. Effective remedy provided by a State party during
examination of a communication
G. Remedies called for under the Committee's views
H. Non-cooperation by States parties in respect of
pending cases
VIII. FOLLOW-UP ACTIVITIES UNDER THE OPTIONAL PROTOCOL
Annexes
I. STATES PARTIES TO THE INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTS AND TO THE OPTIONAL PROTOCOLS AND STATES THAT
HAVE MADE THE DECLARATION UNDER ARTICLE 41 OF THE COVENANT AS AT
28 JULY 1996
A. States parties to the International Covenant on Civil and
Political Rights
B. States parties to the Optional Protocol
C. Status of the Second Optional Protocol, aiming at the
abolition of the death penalty
D. States which have made the declaration under article 41 of
the Covenant
E. Implementation of the Covenant in the new States that
constituted parts of former States parties to the Covenant
II. MEMBERS AND OFFICERS OF THE HUMAN RIGHTS COMMITTEE, 1995-1996
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 COVENANT
General comment No. 25 (57)
VI. OBSERVATIONS OF STATES PARTIES UNDER ARTICLE 40, PARAGRAPH 5,
OF THE COVENANT
France
VII. STATES PARTIES' DELEGATIONS THAT PARTICIPATED IN THE
CONSIDERATION OF THEIR RESPECTIVE REPORTS BY THE COMMITTEE AT ITS
FIFTY-FIFTH, FIFTY-SIXTH AND FIFTY-SEVENTH SESSIONS
CONTENTS (continued)
Page
VIII. 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. 373/1989, Lennon Stephens v. Jamaica (views
adopted on 18 October 1995, fifty-fifth session) .............. 1
B. Communication No. 390/1990, Bernard Lubuto v. Zambia (views
adopted on 31 October 1995, fifty-fifth session) .............. 11
Appendix ...................................................... 16
C. Communications Nos. 422-424/1990, Aduayom et al. v. Togo
(views adopted on 12 July 1996, fifty-seventh session) ........ 17
Appendix ...................................................... 23
D. Communication No. 434/1990, Lal Seerattan v. Trinidad and
Tobago (views adopted on 26 October 1995, fifty-fifth session) 25
E. Communication No. 454/1991, Enrique García Pons v. Spain
(views adopted on 30 October 1995, fifty-fifth session) ....... 30
F. Communication No. 459/1991, Osbourne Wright and Eric Harvey v.
Jamaica (views adopted on 27 October 1995, fifty-fifth
session) ...................................................... 35
G. Communication No. 461/1991, George Graham and Arthur Morrison
v. Jamaica (views adopted on 25 March 1996, fifty-sixth
session) ...................................................... 43
H. Communication No. 480/1991, José Luis García Fuenzalida v.
Ecuador (views adopted on 12 July 1996, fifty-seventh session) 50
I. Communication No. 505/1992, Kéténguéré Ackla v. Togo (views
adopted on 25 March 1996, fifty-sixth session) ................ 57
J. Communication No. 512/1992, Daniel Pinto v. Trinidad and
Tobago (views adopted on 16 July 1996, fifty-seventh session) . 61
K. Communication No. 519/1992, Lyndon Marriott v. Jamaica
(views adopted on 27 October 1995, fifty-fifth session) ....... 67
L. Communication No. 521/1992, Vladimir Kulomin v. Hungary
(views adopted on 22 March 1996, fifty-sixth session) ......... 73
Appendix ...................................................... 83
M. Communication No. 523/1992, Clyde Neptune v. Trinidad and
Tobago (views adopted on 16 July 1996, fifty-seventh session) . 84
N. Communication No. 527/1993, Uton Lewis v. Jamaica (views
adopted on 18 July 1996, fifty-seventh session) ............... 89
Appendix ...................................................... 97
CONTENTS (continued)
Page
O. Communication No. 537/1993, Paul Anthony Kelly v. Jamaica
(views adopted on 17 July 1996, fifty-seventh session) ........ 98
P. Communication No. 540/1993, Celis Laureano v. Peru (views
adopted on 25 March 1996, fifty-sixth session) ................ 108
Q. Communication No. 542/1993, Katombe L. Tshishimbi v. Zaire
(views adopted on 25 March 1996, fifty-sixth session) ......... 116
R. Communication No. 546/1993, Rickly Burrell v. Jamaica (views
adopted on 18 July 1996, fifty-seventh session) ............... 121
S. Communication No. 563/1993, Nydia Bautista de Arellana v.
Colombia (views adopted on 27 October 1995, fifty-fifth
session) ...................................................... 132
T. Communication No. 566/1993, Ivan Somers v. Hungary (views
adopted on 23 July 1996, fifty-seventh session) ............... 144
U. Communication No. 571/1994, Eustace Henry and Everald Douglas
v. Jamaica (views adopted on 25 July 1996, fifty-seventh
session) ...................................................... 155
V. Communication No. 586/1994, Josef Frank Adam v. the Czech
Republic (views adopted on 23 July 1996, fifty-seventh
session) ...................................................... 165
Appendix ...................................................... 173
W. Communication No. 588/1994, Errol Johnson v. Jamaica (views
adopted on 22 March 1996, fifty-sixth session) ................ 174
Appendix ...................................................... 183
X. Communication No. 589/1994, Crafton Tomlin v. Jamaica (views
adopted on 16 July 1996, fifty-seventh session) ............... 191
Y. Communication No. 596/1994, Dennie Chaplin v. Jamaica (views
adopted on 2 November 1995, fifty-fifth session) .............. 197
Appendix ...................................................... 205
Z. Communication No. 597/1994, Peter Grant v. Jamaica (views
adopted on 22 March 1996, fifty-sixth session) ................ 206
AA.Communication No. 598/1994, Carl Sterling v. Jamaica
(views adopted on 22 July 1996, fifty-seventh session) ........ 214
BB.Communication No. 599/1994, Wayne Spence v. Jamaica (views
adopted on 18 July 1996, fifty-seventh session) ............... 219
Appendix ...................................................... 223
CC.Communication No. 600/1994, Dwayne Hylton v. Jamaica (views
adopted on 16 July 1996, fifty-seventh session) ............... 224
Appendix ...................................................... 230
CONTENTS (continued)
Page
IX. DECISIONS OF THE HUMAN RIGHTS COMMITTEE DECLARING COMMUNICATIONS
INADMISSIBLE UNDER THE OPTIONAL PROTOCOL TO THE INTERNATIONAL
COVENANT ON CIVIL AND POLITICAL RIGHTS ............................ 231
A. Communication No. 472/1991, J. P. L. v. France (decision
adopted on 26 October 1995, fifty-fifth session) .............. 231
B. Communication No. 557/1993, X. v. Australia (decision adopted
on 16 July 1996, fifty-seventh session) ....................... 235
C. Communication No. 573/1994, Harry Atkinson et al. v. Canada
(decision adopted on 31 October 1995, fifty-fifth session) .... 243
D. Communication No. 584/1994, Antonius Valentijn v. France
(decision adopted on 22 July 1996, fifty-seventh session) ..... 253
E. Communication No. 608/1995, Franz Nahlik v. Austria (decision
adopted on 22 July 1996, fifty-seventh session) ............... 259
Appendix ...................................................... 263
F. Communication No. 638/1995, Edward Lacika v. Canada (decision
adopted on 3 November 1995, fifty-fifth session) .............. 265
G. Communication No. 645/1995, Vaihere Bordes et al. v. France
(decision adopted on 22 July 1996, fifty-seventh session) ..... 267
H. Communication No. 656/1995, V. E. M. v. Spain (decision adopted
on 30 October 1995, fifty-fifth session) ...................... 274
I. Communication No. 657/1995, Gerrit van der Ent v. the
Netherlands (decision adopted on 3 November 1995, fifty-fifth
session) ...................................................... 276
J. Communication No. 660/1995, Cornelis J. Koning v. the
Netherlands (decision adopted on 3 November 1995, fifty-fifth
session) ...................................................... 278
K. Communication No. 664/1995, Gesina Kruyt-Amesz et al. v. the
Netherlands (decision adopted on 25 March 1996, fifty-sixth
session) ...................................................... 280
X. LIST OF DOCUMENTS ISSUED DURING THE REPORTING PERIOD
ANNEX VIII
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. 373/1989, Lennon Stephens v. Jamaica
(views adopted on 18 October 1995, fifty-fifth session)
Submitted by: Lennon Stephens [represented by counsel]
Victim: The author
State party: Jamaica
Date of communication: 20 July 1989 (initial submission)
Date of decision on admissibility: 12 October 1994
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 18 October 1995,
Having concluded its consideration of communication No. 373/1989, submitted to the Human Rights Committee by Mr. Lennon Stephens under the Optional Protocol to the International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the author of the communication, his counsel and the State party,
Adopts its views under article 5, paragraph 4, of the Optional Protocol.
1. The author of the communication (initial submission dated 20 July 1989 and subsequent correspondence) is Lennon Stephens, a Jamaican sentenced to death in 1984, currently serving a sentence of life imprisonment at the Rehabilitation Centre in Kingston. He resubmits his complaint, which had earlier, on 26 July 1988, been declared inadmissible on the ground of non-exhaustion of domestic remedies, since the author had not then sought leave to appeal to the Judicial Committee of the Privy Council. On 6 March 1989, the Judicial Committee dismissed the author's petition for special leave to appeal. The author now claims to be a victim of violations by Jamaica of article 7, article 9, paragraphs 2 to 4, article 10, paragraph 1, and article 14, paragraphs 3 (c) and 5, of the Covenant. He is represented by counsel.
The facts as submitted by the author
2.1 The author is accused of having murdered George Lawrence in the Parish of Westmoreland, at approximately 11 a.m. on 22 February 1983. The victim's body was never recovered. The prosecution relied on the evidence of three witnesses, who had been working together with, or in the vicinity of, the author on the property of a Mr. Williston at Charlemont, Westmoreland. Thus, witness Linford Richardson testified that he saw the author and the deceased "wrestling" when the gun was discharged. The same witness said that he saw the author wrap the body in tarpaulin and carry it away. A second witness, Sylvester Stone,
testified that he heard an explosion, ran outside and saw the author standing "over a man" who was lying on the ground. The third witness, a contractor, stated that he had seen the author running after "a man" (whom he did not identify), that the author caught up with the man, upon which both stopped. The witness testified that the author then took something from his pocket and gestured with it in the direction of the other man, upon which there was an explosion and the other man dropped to the ground.
2.2 The author contended, in a sworn statement during the trial, that on the day in question he was working on the property of Mr. Williston when the deceased approached him with something shaped like a gun under his waist and asked to see Mr. Williston. The author challenged Mr. Lawrence in the belief that the latter intended to harm Mr. Williston, whereupon the deceased went for the gun. The author wrestled with the deceased, and during the fight, the gun went off and the deceased fell to the ground. The author went home, told his mother what had happened and then surrendered to the police.
2.3 After surrendering to the police on 22 February 1983, the author was detained. It is submitted that the investigating officer, Detective Inspector Ben Lashley, only cautioned him on 2 March 1983, that is, eight days later, telling him that "he was conducting investigations into a case of murder" and that it was alleged "that he shot one George Lawrence".
2.4 The author was subsequently accused of murder and tried in the Westmoreland Circuit Court on 21 and 22 February 1984. He was found guilty as charged and sentenced to death on 22 February 1984. His appeal was dismissed by the Court of Appeal on 4 February 1987, nearly three years later. As stated before, the Judicial Committee of the Privy Council dismissed the author's petition for special leave to appeal on 6 March 1989.
2.5 As to the course of the trial, the author contends that the trial judge failed to direct the jury properly on the issue of self-defence, although he had indicated that he would do so. He further indicates that one of the prosecution witnesses was the deceased's uncle, who had had previous serious but unspecified differences with the author.
2.6 Throughout the trial and appeal, the author was represented by legal aid attorneys. A London law firm represented him pro bono before the Judicial Committee of the Privy Council.
2.7 The author contends that he has exhausted domestic remedies. He notes that while he could theoretically still file a constitutional motion, that remedy is not in reality available to him, as he is destitute and no legal aid is made available by the State party for the purpose of constitutional motions.
The complaint
3.1 Counsel submits that Mr. Stephens is a victim of a violation of articles 7 and 10, paragraph 1, of the Covenant because of his detention, for 7 years and 10 months, on death row. He notes that between his conviction in February 1984 and his classification as a non-capital offender,a the author was confined to death row under deplorable conditions, constantly facing the prospect of imminent execution. Counsel notes that such a prolonged period of detention under conditions of constant anxiety and "agony of suspense" amounts to cruel and inhuman treatment within the meaning of article 7. Reference is made to the judgement of the Judicial Committee of the Privy Council in the case of Pratt and Morgan, in which the complainants' prolonged detention on death row was held to be contrary to section 17 (1) of the Jamaican Constitution.b
3.2 Counsel further claims a violation of article 10, paragraph 1, of the Covenant, because of the bad conditions of detention the author was, and remains, subjected to. He does so by reference to two reports from two non-governmental organizations on prison conditions in Jamaica (May 1990) and on deaths and ill-treatment of prisoners at St. Catherine District Prison, where the author was detained until December 1992. The reports complain about gross overcrowding, total lack of sanitation and medical or dental care, inadequate food in terms of nutrition, quantity and quality, and lengthy confinement in cells.
3.3 It is submitted that the circumstances of the author's pretrial detention amount to a violation of article 9, paragraphs 2 to 4, of the Covenant. Thus, the trial transcript reveals that the author was detained on 22 February 1983 but only "cautioned" eight days later (2 March 1983). That situation, it is submitted, is contrary to article 9, paragraph 2, which requires that a general description of the reasons for the arrest must be given when it occurs and that, subsequently, the specific legal reasons must be provided. It is claimed that in view of the eight-day delay between arrest and "cautioning", the author was not "promptly informed of any charges against him".
3.4 The situation described above is also said to amount to a violation of article 9, paragraph 3: as Mr. Stephens was only charged eight days after being detained, he was not "promptly" brought before a judicial officer within the meaning of that provision. Reference is made to a number of views adopted by the Committee.c Consequently, his rights under article 9, paragraph 4, were also violated, as he was not afforded in due course the opportunity to obtain, on his own initiative, a decision on the lawfulness of his detention by a court of law.
3.5 It is submitted that a delay of almost three years (35 and a half months) between conviction and appeal amounts to a violation of article 14, paragraphs 3 (c) and 5, of the Covenant. Counsel concedes that the reasons for the delay remain unclear despite many attempts by his law firm and the Jamaica Council for Human Rights to contact the author's lawyer for the trial and to ascertain the reasons for the delay. He emphasizes, however, that Mr. Stephens did nothing to cause, or contribute to, the delay between his conviction and the hearing of the appeal. The same delay is also said to constitute a violation of article 14, paragraph 1, by reference to the Committee's views in Muñoz v. Peru, in which it was held that "the concept of a fair hearing necessarily entails that justice be rendered without undue delay".d
3.6 Finally, counsel submits that the author has been subjected to ill-treatment by prison warders of St. Catherine District Prison, in violation of articles 7 and 10, paragraph 1, of the Covenant. Thus, in the course of 1991, a warder allegedly hit the author over the head until he lost consciousness and had to be taken to hospital. In a questionnaire filled out by the author for the Jamaica Council for Human Rights, he notes that "he still has problems with his right eye as a result". The Office of the Parliamentary Ombudsman was contacted about the matter, and his office, in a letter dated 21 September 1993 addressed to counsel, replied that the issue "would receive the most prompt attention". However, no further action had been taken by the Ombudsman as of the spring of 1994. Counsel argues that the author has exhausted available domestic remedies in respect of the complaint, as the lack of replies from the Ombudsman and other bodies in Jamaica has made it virtually impossible to pursue the complaint further.
The State party's information on admissibility and the author's comments thereon
4.1 On 15 September 1989, the communication was transmitted to the State party under rule 86 of the rules of procedure of the Committee; the State party was requested not to execute the author while his case was pending before the Committee. The State party was further informed that additional clarifications were being sought from the author and his counsel. Some limited clarifications from the author were received in 1990 and 1991. During the Committee's forty-fifth session, in July 1992, it was decided to transmit the communication to the State party under rule 91 of the rules of procedure, seeking information and observations about the admissibility of the case. The request under rule 86 was reiterated. Both requests were transmitted to the State party on 5 September 1992.
4.2 In a submission dated 27 April 1993, the State party regrets that "in the absence of a communication setting out the facts on which the author's complaints are based, as well as the articles of the Covenant which are alleged to have been violated, it will not be possible to prepare a response for the Committee". The submission crossed with a reminder sent to the State party by the Committee on 6 May 1993; on 28 July 1993, the State forwarded an additional submission.
4.3 In the latter submission, the State party notes that "it appears that the author is complaining of breaches of articles 7 and 10 of the Covenant". In the State party's opinion, that complaint is inadmissible on the grounds of non-exhaustion of domestic remedies. Thus, the author retains the right to seek constitutional redress for the alleged violation of his rights, by way of constitutional motion. Furthermore, the author would be entitled "to bring a civil action for damages for assault in relation to any injuries he allegedly sustained as a result of ill-treatment during his incarceration. This is another remedy to be exhausted before the communication is eligible for consideration by the Committee."
5.1 In his comments on the State party submissions, dated 17 March 1994, counsel puts forward several new claims, which are detailed in paragraphs 3.1 and 3.3 to 3.5 above. In particular, he submits that a constitutional motion would not be an available and effective remedy in the circumstances of the author's case, as Mr. Stephens is penniless and no legal aid is made available for constitutional motions.
5.2 Counsel's comments were transmitted, together with all the enclosures, to the State party on 5 May 1994, with a further request for comments and observations on counsel's submission. No further submission had been received from the State party as of 30 September 1994.
The Committee's admissibility decision
6.1 The Committee considered the admissibility of the communication during its fifty-second session. It noted the State party's criticism referred to in paragraph 4.2 above but recalled that, under the Optional Protocol procedure, it was not necessary for an individual who claims to be a victim of a violation of any of the rights set forth in the Covenant explicitly to invoke the articles of the Covenant. It was clearly apparent from the material transmitted to the State party that the author complained about issues related to his conditions of detention and his right to a fair trial.
6.2 The Committee noted that part of the author's allegations related to the instructions given by the judge to the jury with regard to the evaluation of evidence and the question of whether self-defence arose in the case. It reaffirmed that it is in principle for the appellate courts of States parties to review specific instructions to the jury by the judge, unless it is clear that said instructions were arbitrary or amounted to a denial of justice or that the judge manifestly violated his obligation of impartiality. The material before the Committee did not show that the judge's instructions to the jury in the case suffered from such defects; in particular, the issue of self-defence was put to the jury in some detail. That part of the communication was therefore deemed inadmissible under article 3 of the Optional Protocol.
6.3 Concerning the claims under articles 7 and 10 of the Covenant, relating to prison conditions in general, the Committee first noted that counsel had addressed the issue of prison conditions merely by reference to two reports from non-governmental organizations on prison conditions in Jamaica, without considering Mr. Stephens' personal situation on death row or at the Rehabilitation Centre in Kingston. It is further not apparent that the complaints had ever been brought to the attention of the competent Jamaican authorities. Accordingly, those claims were inadmissible under article 5, paragraph 2 (b), of the Protocol.
6.4 The Committee noted counsel's contention that the eight years and 10 months which Mr. Stephens spent on death row amounted to a violation of article 7 of the Covenant. While that issue had not been placed before the Jamaican courts by way of constitutional motions, it was uncontested that no legal aid was made available for that purpose and that the author was dependent on legal aid. In the circumstances, the Committee did not consider a constitutional motion to be an effective remedy in respect of that claim.
6.5 With respect to the claim of the author's ill-treatment on death row during 1991, the Committee noted the State party's claim that the case was inadmissible because of the author's failure to file a constitutional motion under section 25 of the Jamaican Constitution. It recalled that the author and his counsel attempted to have the alleged ill-treatment of Mr. Stephens investigated, in particular by the Office of the Parliamentary Ombudsman, but without result as of early 1994. It further recalled that the Supreme (Constitutional) Court of Jamaica had, in recent cases, allowed applications for constitutional redress in respect of breaches of fundamental rights, after the criminal appeals in those cases were dismissed. It also recalls, however, that the State party had repeatedly indicated that no legal aid was available for constitutional motions; as a result, the Committee concluded that, in the absence of legal aid, it was not precluded by article 5, paragraph 2 (b), from considering that aspect of the case.
6.6 Similar considerations applied to the author's claim under article 9, paragraphs 2 to 4, and article 14, paragraphs 3 (c) and 5. While it was possible in theory for the author to file a constitutional motion, he was effectively barred from doing so in the absence of legal aid. Mutatis mutandis, the considerations in paragraph 6.4 above applied.
6.7 On 12 October 1994, the Committee declared the communication admissible insofar as it appeared to raise issues under article 7, article 9, paragraphs 2 to 4, article 10, paragraph 1, and article 14, paragraphs 3 (c) and 5, of the Covenant.
The State party's observations on the merits and the author's comments thereon
7.1 In a submission dated 27 January 1995, the State party challenges counsel's reliance on the judgement of the Judicial Committee of the Privy Council in the case of Pratt and Morgan v. Attorney-General of Jamaica in respect of his argument under article 7 of the Covenant (length of detention on death row). By reference to the Committee's own views of 6 April 1989 in this case in which it had been held that delay by itself was not enough to constitute a breach of article 7 of the Covenant,e the State party contends that the Privy Council's judgement in Pratt and Morgan does not remove the necessity of determining on a case-by-case basis whether detention on death row for more than five years violates article 7. In the author's case, his failure to exhaust domestic remedies expeditiously to a large extent resulted in the delay in the execution of the capital sentence against him, prior to reclassification of his conviction to non-capital murder.
7.2 As to the alleged violation of article 9, paragraphs 2 to 4, the State party argues that the circumstances of the author's arrest and detention - namely, that he gave himself up to the police "in respect of the murder of Mr. Lawrence" - were such as to make him fully aware of the reasons for arrest and detention. In the circumstances, and given the difficulties the police experienced in locating the body of the deceased, the period of time the author spent in police custody (eight days) must be deemed reasonable. For the State party, the fact that the author surrendered to the police reinforces that point.
7.3 The State party contends that there is no substantiation to support the author's claim of a violation of article 14, paragraphs 3 (c) and 5. In particular, there is said to be no evidence that the cause of the delay was attributable to an act or omission on the part of the judicial authorities of Jamaica.
7.4 As to the alleged ill-treatment of Mr. Stephens on death row during 1991, the State party observes, in a submission of 13 March 1995, that there was no violation of articles 7 and 10, paragraph 1, of the Covenant, since the injuries suffered by the author resulted from the "use of reasonable force by a warder to restrain the applicant who had attacked the warder". Such use of reasonable force, the State party maintains, does not constitute a breach of articles 7 and 10, paragraph 1. It adds that the warder in question had to seek medical treatment himself as a result of the author's attack on him.
8.1 In his comments, counsel reaffirms that Mr. Stephens was subjected to inhuman and degrading treatment by virtue of his confinement, for eight years and 10 months, on death row. He points in particular to the length of the delay and the conditions on death row, and submits that an execution that would have taken place more than five years after conviction "would undoubtedly result in pain and suffering", which is precisely why the Judicial Committee recommended commutation to life imprisonment to all death row inmates in Jamaica incarcerated for five years or more.
8.2 Counsel dismisses as irrelevant that some of the delays in execution of the sentence may have been attributable to Mr. Stephens and adduces the Privy Council's own argument in Pratt and Morgan, in which it is held that "[i]f the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delays and not the prisoner who takes advantage of it".
8.3 Counsel reiterates that his client was detained for eight days, "presumably incommunicado", without being told that he was being charged for murder. He refers to the Committee's general comment No. 8 (16), on article 9, which notes that delays under article 9, paragraph 3, must not exceed a few days and that pretrial detention should be an exception. He further observes that a requirement to give reasons at the time of the arrest has been imposed under common law and is now laid down in section 28 of the Police and Criminal Evidence Act of 1984. While he accepts that Mr. Stephens voluntarily went with his mother to the Montego Bay police station to "report the incident of the death of George Lawrence", he does not accept that it was reasonable in the circumstances to detain the author for eight days without charge.
8.4 In this context, he contends that article 9, paragraph 2, imposes the obligation (a) to give reasons at the time of the arrest and (b) to inform the person arrested "promptly" of any charges against him. On 22 February 1983, the only information the author was given was that he was under detention "until the police obtained more information". That, it is submitted, does not satisfy the requirements of article 9, paragraph 2.
8.5 As to the alleged violation of article 9, paragraph 3, counsel refers to the Committee's jurisprudence which emphasizes that delays between arrest and presentation to a judicial officer should not exceed a few days.f He also points out that in an individual opinion appended to one of those views by Committee member B. Wennergren it was submitted that the word "promptly" does not permit a delay of more than two or three days.g
8.6 Finally, counsel argues that article 9, paragraph 4, entitles any person subject to arrest or detention to challenge the lawfulness of that detention before a court without delay. He refutes the State party's argument that there was no denial of Mr. Stephens' right to do so by the judicial authorities but rather a failure on the part of the author himself to exercise the right to apply for writ of habeas corpus.
8.7 In a further submission dated 21 April 1995, counsel contends that without providing the evidence of an official report of the incident involving beatings of the author by a warder in 1991, the State party cannot dismiss the author's claim that he was subjected to inhuman and degrading treatment. He argues that the State party's reliance on the use of "reasonable force" to restrain the applicant who had attacked a warder is misleading, as both article 3 of the United Nations Code of Conduct for Law Enforcement Officials and the Correctional Rules of Jamaica prescribe behaviour which promotes the rehabilitation and humane treatment of detainees, implying that force may be used only when "strictly necessary".
8.8 Counsel refers to a report prepared in 1983 by the Parliamentary Ombudsman of Jamaica, in which he observed that Jamaican prison rules were systematically broken and that there were "merciless and unjustifiable beatings" of inmates by prison warders. Furthermore, the Jamaica Council for Human Rights is said to have been inundated with cases of abuse of prisoners since it was created in 1968. In addition, counsel points out that several prisoners have died following clashes between warders and inmates; the circumstances of the deaths of inmates often remain unclear and suspicious. Other prisoners are said to be targeted for abuse simply because they were witnesses to beatings and killings by prison warders. Four such incidents had occurred: on 28 May 1990 (death of three inmates as a result of injuries inflicted by prison staff), on 30 June 1991 (four inmates killed by other inmates, who reportedly had been paid by prison warders) and on 4 May 1993 and on 31 October 1993 (four inmates shot dead in their cells).
8.9 It is submitted that in the light of this history of violence in the death row section of St. Catherine District Prison, the State party has in no way shown that the author was not a victim of violations of articles 7 and 10, paragraph 1, in the course of 1991. By reference to rule 173 of the Correctional Rules of Jamaica and rule 36 of the United Nations Standard Minimum Rules for the Treatment of Prisoners, which deal with internal complaints procedures, counsel submits that prisoners in Jamaica do not receive adequate redress from the prisons' internal complaints procedures. Some of them may be subjected to retaliatory measures if they testify against warders who have committed abuses. He reiterates that he has never been able to obtain a copy of the investigation into the beatings of Mr. Stephens and continues to question that the warder who injured his client used "no more force than [was] necessary" (rule 90 of the Correctional Rules of Jamaica).
Examination of the merits
9.1 The Human Rights Committee has examined the present communication in the light of all the information made available to it by the parties, as it is required to do under article 5, paragraph 1, of the Optional Protocol, and bases its views on the following findings.
9.2 The Committee has noted the author's contention that his rights under articles 7 and 10, paragraph 1, of the Covenant have been violated because of the beatings he was subjected to on death row by a prison warder. It observes that while the author's allegation in this respect has remained somewhat vague, the State party itself concedes that the author suffered injuries as a result of use of force by warders; the author has specified that those injuries were to his head and that he continues to have problems with his right eye as a result. The Committee considers that the State party has failed to justify, in a manner sufficiently substantiated, that the injuries sustained by the author were the result of the use of "reasonable force" by a warder. It further reiterates that the State party is under an obligation to investigate, as expeditiously and thoroughly as possible, incidents of alleged ill-treatment of inmates. On the basis of the information before the Committee, it appears that the author's complaint to the ombudsman was acknowledged but was not investigated thoroughly or expeditiously. In the circumstances of the case, the Committee concludes that the author was treated in a way contrary to articles 7 and 10, paragraph 1, of the Covenant.
9.3 The Committee has noted counsel's argument that the eight years and 10 months Mr. Stephens spent on death row amounted to inhuman and degrading treatment within the meaning of article 7. It is fully aware of the ratio decidendi of the judgement of the Judicial Committee of the Privy Council of 2 November 1993 in the case of Pratt and Morgan, which has been adduced by counsel, and has taken note of the State party's reply in this respect.
9.4 In the absence of special circumstances, none of which are discernible in the present case, the Committee reaffirms its jurisprudence that prolonged judicial proceedings do not per se constitute cruel, inhuman and degrading treatment, and that, in capital cases, even prolonged periods of detention on death row cannot generally be considered to constitute cruel, inhuman or degrading treatment.h In the instant case, a little over five years passed between the author's conviction and the dismissal by the Judicial Committee of his petition for special leave to appeal; he spent another three years and nine months on death row before his sentence was commuted to life imprisonment under the Offences against the Person (Amendment) Act of 1992. Since the author was, at that time, still availing himself of remedies, the Committee does not consider that that delay constituted a violation of article 7 of the Covenant.
9.5 The author has alleged a violation of article 9, paragraph 2, because he was not informed promptly of the reasons for his arrest. However, it is uncontested that Mr. Stephens was fully aware of the reasons for which he was detained, as he had surrendered to the police. The Committee further does not consider that the nature of the charges against the author was not conveyed "promptly" to him. The trial transcript reveals that the police officer in charge of the investigation, a detective inspector from the parish of Westmoreland, cautioned Mr. Stephens as soon as possible after learning that the latter was being kept in custody at the Montego Bay police station. In the circumstances, the Committee finds no violation of article 9, paragraph 2.
9.6 As to the alleged violation of article 9, paragraph 3, it remains unclear on which exact day the author was brought before a judge or other officer authorized to exercise judicial power. In any event, on the basis of the material available to the Committee, this could only have been after 2 March 1983, i.e. more than eight days after Mr. Stephens was taken into custody. While the meaning of the term "promptly" in article 9, paragraph 3, must be determined on a case-by-case basis, the Committee recalls its general comment on article 9i and its jurisprudence under the Optional Protocol, pursuant to which delays should not exceed a few days. A delay exceeding eight days in the present case cannot be deemed compatible with article 9, paragraph 3.
9.7 With respect to the alleged violation of article 9, paragraph 4, it should be noted that the author did not himself apply for habeas corpus. He could have, after being informed on 2 March 1983 that he was suspected of having murdered Mr. Lawrence, requested a prompt decision on the lawfulness of his detention. There is no evidence that he or his legal representative did so. It cannot, therefore, be concluded that Mr. Stephens was denied the opportunity to have the lawfulness of his detention reviewed in court without delay.
9.8 Finally, the author has alleged a violation of article 14, paragraphs 3 (c) and 5, on account of the delay between his trial and his appeal. In this context, the Committee notes that during the preparation by a London lawyer of the author's petition for special leave to appeal to the Judicial Committee of the Privy Council, Mr. Stephens' legal aid representative for the trial was requested repeatedly but unsuccessfully to explain the delays between trial and the hearing of the appeal in December 1986. While a delay of almost two years and 10 months between trial and appeal in a capital case is regrettable and a matter of concern, the Committee cannot, on the basis of the material before it, conclude that the delay was primarily attributable to the State party rather than to the author.
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 reveal a violation by Jamaica of articles 7, 9, paragraph 3, and 10, paragraph 1, of the Covenant.
11. The Committee is of the view that Mr. Stephens is entitled, under article 2, paragraph 3 (a), of the Covenant, to an appropriate remedy, including compensation and further consideration of his case by the State party's Parole Board.
12. Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's views.
[Adopted in English, French and Spanish, the English text being the original version.]
Notes
a Under the offences against the Person (Amendment) Act of 1992.
b Privy Council Appeal No. 10 of 2 November 1993.
c See Official Records of the General Assembly, Forty-sixth Session, Supplement No. 40 (A/46/40), annex XI.D, communication No. 253/1987 (Kelly v. Jamaica), views adopted on 8 April 1991, and appendix II; and ibid., Forty-seventh Session, Supplement No. 40 (A/47/40), annex IX.I, communication No. 277/1988 (Terán Jijón v. Ecuador), views adopted on 26 March 1992.
d Ibid., Forty-fourth Session, Supplement No. 40 (A/44/40), annex X.D, communication No. 203/1986, views adopted on 4 November 1988, para. 11.3.
e Ibid., annex X.F, communications Nos. 210/1986 and 225/1987 (Pratt and Morgan v. Jamaica), views adopted on 6 April 1989, para. 13.6.
f Ibid., Forty-sixth Session, Supplement No. 40 (A/46/40), annex XI.D, communication No. 253/1987 (Kelly v. Jamaica), views adopted on 8 April 1991, para. 5.8; and ibid., Forty-seventh Session, Supplement No. 40 (A/47/40), annex IX.I, communication No. 277/1988 (Terán Jijón v. Ecuador), views adopted on 26 March 1992, para. 5.3.
g Ibid., Forty-sixth Session, Supplement No. 40 (A/46/40), annex XI.D, appendix II.
h Ibid., Forty-seventh Session, Supplement No. 40 (A/47/40), annex IX.F, communications Nos. 270/1988 and 271/1988 (Barrett and Sutcliffe v. Jamaica), views adopted on 30 March 1992, para. 8.4.
i Ibid., Thirty-seventh Session, Supplement No. 40 (A/37/40), annex V, general comment No. 8 (16), para. 2.
B. Communication No. 390/1990, Bernard Lubuto v. Zambia (views
adopted on 31 October 1995, fifty-fifth session)
Submitted by: Bernard Lubuto
Victim: The author
State party: Zambia
Date of communication: 1 January 1990 (initial submission)
Date of decision on admissibility: 30 June 1994
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 31 October 1995,
Having concluded its consideration of communication No. 390/1990, submitted to the Human Rights Committee by Mr. Bernard Lubuto 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 Bernard Lubuto, a Zambian citizen, currently awaiting execution at the Maximum Security Prison in Kabwe, Zambia.
The facts as presented by the author
2.1 The author was sentenced to death on 4 August 1983 for aggravated robbery, committed on 5 February 1980. On 10 February 1988, the Supreme Court of Zambia dismissed his appeal.
2.2 The evidence led by the prosecution during the trial was that, on 5 February 1980, the author and two co-accused robbed Marcel Joseph Mortier of a motor vehicle (a Datsun vanette). One of the co-accused held Mr. Mortier at gunpoint, while stepping into his car. The author and the other co-accused were standing nearby in the bushes. The man with the gun fired shots at one of Mr. Mortier's labourers, who had been in the car and tried to run away from the spot. The man then drove off with the car, with Mr. Mortier still in it. Mr. Mortier then threw himself out of the vehicle and fell to the ground. Shots were fired at him but did not hit him. The author was later identified at an identification parade and the prosecution produced a statement signed by the author, in which he admits his involvement in the robbery.
2.3 The author testified during the trial that he had been arrested by the police on the evening of 4 February 1980, after a fight in a tavern. He was kept in the police station overnight; in the morning of 5 February, when he was about to be released, he was told that a robbery had taken place. He was taken to an office, where one of Mr. Mortier's labourers said that he answered the description of the robber. The author was then returned to the cells, but kept denying any involvement in the robbery. On 7 February 1980, he participated in an identification parade and was identified as one of the robbers by the labourer whom he had met earlier at the police station.
2.4 The author's testimony was rejected by the Court on the basis of the entries in the police register, which showed, inter alia, that the author was arrested late in the evening of 5 February 1980.
The complaint
3.1 The author claims that the trial against him was unfair, since the judge accepted all evidence against him, although a careful examination would have shown discrepancies in the statements made by the witnesses. He further claims that his legal aid lawyer advised him to plead guilty and that, when he refused, the lawyer failed to cross-examine the witnesses. The author claims that the death sentence imposed on him is disproportionate, since no one was killed or wounded during the robbery.
3.2 The author claims that he was tortured by the police to force him to give a statement. He alleges that he was beaten with a hose pipe and cable wires, that sticks were put between his fingers and that his fingers were then hit on the table, and that a gun was tied with a string to his penis and he was then forced to stand up and walk. The allegations were produced at the trial, but the judge considered, on the basis of the evidence, that the author's statement to the police was given freely and voluntarily.
3.3 Although the author does not invoke the provisions of the Covenant, it appears from the allegations and the facts which he submitted that he claims to be a victim of a violation by Zambia of articles 6, 7 and 14 of the Covenant.
The Committee's admissibility decision
4.1 The Committee considered the admissibility of the communication during its fifty-first session. It noted with concern the lack of cooperation from the State party, which had not submitted any observations on admissibility.
4.2 The Committee considered inadmissible the author's claims concerning the conduct of the trial. It recalled that it is, in principle, not for the Committee to evaluate facts and evidence in a particular case and it found that the trial transcript did not support the author's claims. In particular, it appeared from the trial transcript that author's counsel did in fact cross-examine the witnesses against the author.
4.3 The Committee considered that the length of the proceedings against the author might raise issues under article 14, paragraph 3 (c), and, as regards the appeal, article 14, paragraph 5, of the Covenant. The Committee further considered that the author's claim that the imposition of the death sentence was disproportionate, since no one was killed or wounded during the robbery, might raise issues under article 6, paragraph 2, of the Covenant, and that his claim that he was tortured by the police to force him to give a statement might raise issues under article 7 of the Covenant which should be examined on the merits.
4.4 Consequently, on 30 June 1994, the Human Rights Committee declared the communication admissible insofar as it appeared to raise issues under articles 6, 7 and 14, paragraphs 3 (c) and 5, of the Covenant. The State party was requested, under rule 86 of the Committee's rules of procedure, not to carry out the death sentence against the author while his communication was under consideration by the Committee.
The State party's submission on the merits and the author's comments thereon
5.1 By submission of 29 December 1994, the State party acknowledges that the proceedings in Mr. Lubuto's case took rather long. The State party requests the Committee to take into consideration its situation as a developing country and the problems it encounters in the administration of justice. It is explained that the instant case is not an isolated one and that appeals in both civil and criminal cases take considerable time before they are disposed of by the courts. According to the State party, this is due to the lack of administrative support available to the judiciary. Judges have to write out every word verbatim during the hearings, because of the lack of transcribers. The records are later typed out and have to be proofread by the judges, causing inordinate delays. The State party also refers to the costs involved in preparing the court documents.
5.2 The State party further points out that crime has increased and the number of cases to be decided by the courts have multiplied. Because of the difficult economic situation in the country, it has not been possible to ensure equipment and services in order to expedite the disposal of cases. The State party submits that it is trying to improve the situation and that it has recently acquired nine computers and expects to get 40 more.
5.3 The State party concludes that the delays suffered by the author in the determination of his case are inevitable because of the situation explained above. The State party further submits that there has been no violation of article 14, paragraph 5, in the instant case, since the author's appeal was heard by the Supreme Court, be it with delay.
5.4 As regards the author's claim that the imposition of the death sentence was disproportionate since no one was killed or wounded during the robbery, the State party submits that the author's conviction was in accordance with Zambian law. The State party explains that armed robberies are prevalent in Zambia and that victims go through a traumatic experience. For that reason, the State party sees aggravated robbery involving the use of a firearm as a serious offence, whether or not a person is injured or killed. Finally, the State party submits that the author's sentence was pronounced by the competent courts.
5.5 Furthermore, the State party points out that under articles 59 and 60 of the Constitution, the President of the Republic of Zambia can exercise the prerogative of mercy. The author's case has been submitted and a decision is awaited. The State party further states that the delay in the hearing of the appeal and the fact that no one was injured in the attack are taken into account by the Advisory Committee on the exercise of the prerogative of mercy.
5.6 With regard to the author's claim that he was tortured by the police in order to force him to give a statement, the State party submits that torture is prohibited under Zambian law. Any victim of torture by the police can seek redress under both the criminal and civil legal systems. In this case, the author did not make use of any of those possibilities, and the State party suggests that, had the author's allegations been true, his counsel at the trial would have certainly advised him to do so.
5.7 The State party further explains that, if during trial an accused alleges that he was tortured by the police in order to extract a confession, the Court is obliged to conduct a "trial within a trial" to determine whether the confession was given voluntarily or not. In the author's case, such a trial within a trial was held, but it appeared from the testimonies given that the accused claimed that they were merely ordered to sign a statement without having made a confession. The Court then continued with the main trial, and the question of whether the author made a statement or not was decided upon the basis of all the evidence at the end of the trial. It appears from the trial transcript that the judge concluded that the author had not been assaulted. He based his conclusion on the fact that the investigating magistrate, before whom the author and his co-accused appeared on 8 February 1980, had not recorded any injuries or marks of beating nor had the author complained to him about maltreatment; he further took into account discrepancies in the author's testimony as well as evidence led by the police officers that the accused had been cooperative. There was no record of the author having been medically treated for injuries which might have been caused by maltreatment.
5.8 Finally, the State party confirms that, pursuant to the Committee's request, the appropriate authorities have been instructed not to carry out the death sentence against the author while his case is before the Committee.
6. In his comments on the State party's submission, the author explains that he first appeared before a judge on 4 July 1981, and that the trial was then adjourned several times because the prosecution was not ready. At the end of July 1981, the case was transferred to another judge, who did not proceed with it; only on 22 September 1982, again before a different judge, did the trial actually start.
Issues and proceedings before the Committee
7.1 The Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol.
7.2 The Committee notes that the author was convicted and sentenced to death under a law that provides for the imposition of the death penalty for aggravated robbery in which firearms are used. The issue that must accordingly be decided is whether the sentence in the instant case is compatible with article 6, paragraph 2, of the Covenant, which allows for the imposition of the death penalty only "for the most serious crimes". Considering that in this case use of firearms did not produce the death or wounding of any person and that the court could not under the law take those elements into account in imposing sentence, the Committee is of the view that the mandatory imposition of the death sentence under those circumstances violates article 6, paragraph 2, of the Covenant.
7.3 The Committee has noted the State party's explanations concerning the delay in the trial proceedings against the author. The Committee acknowledges the difficult economic situation of the State party, but wishes to emphasize that the rights set forth in the Covenant constitute minimum standards which all States parties have agreed to observe. Article 14, paragraph 3 (c), states that all accused shall be entitled to be tried without delay, and that requirement applies equally to the right of review of conviction and sentence guaranteed by article 14, paragraph 5. The Committee considers that the period of eight years between the author's arrest in February 1980 and the final decision of the Supreme Court, dismissing his appeal, in February 1988, is incompatible with the requirements of article 14, paragraph 3 (c).
7.4 As regards the author's claim that he was heavily beaten and tortured upon arrest, the Committee notes that that allegation was before the judge who rejected it on the basis of the evidence. The Committee considers that the information before it is not sufficient to establish a violation of article 7 in the author's case.
8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of articles 6, paragraph 2, and 14, paragraph 3 (c), of the International Covenant on Civil and Political Rights.
9. The Committee is of the view that Mr. Lubuto is entitled, under article 2, paragraph 3 (a), of the Covenant, to an appropriate and effective remedy, entailing a commutation of sentence. The State party is under an obligation to take appropriate measures to ensure that similar violations do not occur in the future.
10. Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's views.
[Adopted in English, French and Spanish, the English text being the original version.]
Appendix
[Original: English]
Individual opinion of Committee member Nisuke Ando
I do not oppose the Committee's views in the present case. However, with respect to the statement in the views that "use of firearms did not produce the death or wounding of any person", I would like to add the following:
Certain categories of acts are classified as "crimes" because they create a grave danger which may result in death or irreparable harm to many and unspecified persons. Such crimes include bombing of busy quarters, destruction of reservoirs, poisoning of drinking water, gassing in subway stations and probably espionage in wartime. In my view, the imposition of the severest punishment, including the death penalty where applicable, could be justified against those crimes, even if they do not result for one reason or another in the death of or injury to any person.
(Signed) Nisuke Ando
C. Communications Nos. 422-424/1990, Aduayom et al. v. Togo
(views adopted on 12 July 1996, fifty-seventh session)
Submitted by: Adimayo M. Aduayom, Sofianou T. Diasso and
Yawo S. Dobou
Victims: The authors
State party: Togo
Dates of communications: 31 July 1990, 31 July 1990 and
1 August 1990, respectively (initial
submissions)
Date of decision on admissibility: 30 June 1994
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 12 July 1996,
Having concluded its consideration of communications Nos. 422/1990, 423/1990 and 424/1990, submitted to the Human Rights Committee by Messrs Adimayo M. Aduayom, Sofianou T. Diasso and Yawo S. Dobou under the Optional Protocol to the International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the authors of the communications and the State party,
Adopts its views under article 5, paragraph 4, of the Optional Protocol.
1. The authors of the communications are Adimayo M. Aduayom, Sofianou T. Diasso and Yawo S. Dobou, three Togolese citizens currently residing in Lomé. The authors claim to be victims of violations by Togo of articles 9 and 19 of the International Covenant on Civil and Political Rights. The Optional Protocol entered into force for Togo on 30 June 1988.
The facts as submitted by the authors
2.1 The author of communication No. 422/1990, Mr. Aduayom, is a teacher at the University of Benin (Togo) in Lomé. He states that he was arrested on 18 September 1985 by the police in Lomé and transferred to a Lomé penitentiary on 25 September 1985. He was charged with the offence of lèse-majesté (outrage au Chef de l'Etat dans l'exercice de sa fonction), and criminal proceedings were instituted against him. However, on 23 April 1986, the charges against him were dropped and he was released. Thereafter, he unsuccessfully requested his reinstatement in the post of maître assistant at the University, which he had held prior to his arrest.
2.2 The author of communication No. 423/1990, Mr. Diasso, also was a teacher at the University of Benin. He was arrested on 17 December 1985 by agents of the Togolese gendarmerie nationale, allegedly on the ground that he was in possession of pamphlets criticizing the living conditions of foreign students in Togo and suggesting that money "wasted" on political propaganda would be better spent on improving the living conditions in, and the equipment of, Togolese universities. He was taken to a Lomé prison on 29 January 1986. He was also charged with the offence of lèse-majesté, but the Ministry, after conceding that the charges against him were unfounded, released him on 2 July 1986. Thereafter, he has unsuccessfully sought reinstatement in his former post of adjunct professor of economics at the University.
2.3 The author of case No. 424/1990, Mr. Dobou, was an inspector in the Ministry of Post and Telecommunications. He was arrested on 30 September 1985 and transferred to a Lomé prison on 4 October 1985, allegedly because he had been found reading a document outlining in draft form the statutes of a new political party. He was charged with the offence of lèse-majesté. On 23 April 1986, however, the charges were dropped and the author was released. Subsequently, he unsuccessfully requested reinstatement in his former post.
2.4 The authors' wages were suspended under administrative procedures after their arrest, on the ground that they had unjustifiably deserted their posts.
2.5 With respect to the requirement of exhaustion of domestic remedies, the authors state that they submitted their respective cases to the National Commission on Human Rights, an organ they claim was established for the purpose of investigating claims of human rights violations. The Commission, however, did not examine their complaints and simply forwarded their files to the Administrative Chamber of the Court of Appeal, which, apparently, has not seen fit to examine their cases. The author of case No. 424/1990 additionally complains about the delays in the procedure before the Court of Appeal; thus, he was sent documents submitted by the Ministry of Post and Telecommunications some seven months after their receipt by the Court.
The complaint
3.1 The authors claim that both their arrest and their detention was contrary to article 9, paragraph 1, of the Covenant. That was implicitly conceded by the State party when it dropped all the charges against them. They further contend that the State party has violated article 19 in respect to them, because they were persecuted for having carried, read or disseminated documents that contained no more than an assessment of Togolese politics, either at the domestic or foreign policy level.
3.2 The authors request reinstatement in the posts they had held prior to their arrest, and request compensation under article 9, paragraph 5, of the Covenant.
The State party's observations on admissibility and the authors' comments
and clarifications
4.1 The State party objects to the admissibility of the communications on the ground that the authors have failed to exhaust available domestic remedies. It observes that the procedure is regularly engaged before the Court of Appeal. In the cases concerning Messrs Aduayom and Diasso, the employer (the University of Benin) did not file its own submission, so that the Administrative Chamber of the Court of Appeal cannot pass sentence. With respect to the case of Mr. Dobou, the author allegedly did not comment on the statement of the Ministry of Post and Telecommunications. The State party concludes that domestic remedies have not been exhausted, since the Administrative Chamber has not handed down a decision.
4.2 The State party also notes that the Amnesty Law of 11 April 1991 decreed by the President of the Republic constitutes another remedy for the authors. The law covers all political cases as defined by the Criminal Code ("infractions à caractère ou d'inspiration politique, prévues par la législation pénale") which occurred before 11 April 1991. Article 2 of the Amnesty Law expressly allows for reinstatement in public or private office. Amnesty is granted by the Public Prosecutor ("Procureur de la République ou juge chargé du Ministère Public") within three days after the request (article 4). According to article 3, the petition under these provisions does not prevent the victim from pursuing his claims before the ordinary tribunals.
5.1 After a request for further clarifications formulated by the Committee during its forty-ninth (1993) session, the authors, by letters dated 23 December, 15 November and 16 December 1993, respectively, informed the Committee that they were reinstated in their posts pursuant to the Law of 11 April 1991. Mr. Diasso notes that he was reinstated with effect from 27 May 1991, the others with effect from 1 July 1991.
5.2 The authors note that there has been no progress in the proceedings before the Administrative Chamber of the Court of Appeal and that their cases appear to have been shelved, after their reinstatement under the Amnesty Law. They argue, however, that the law was improperly applied to their cases, since they had never been tried and convicted for committing an offence but had been unlawfully arrested, detained and subsequently released after the charges against them were dropped. They add that they have not been paid arrears on their salaries for the period between arrest and reinstatement, during which they were denied their income.
5.3 As regards the statute of the University of Benin, the authors submit that, although the University is, at least in theory, administratively and financially autonomous, it is in practice under the control of the State, as 95 per cent of its budget is state-controlled.
5.4 The authors refute the State party's argument that they have failed to exhaust domestic remedies. In this context, they argue that the proceedings before the Administrative Chamber of the Court of Appeal are wholly ineffective, since their cases were obviously filed after their reinstatement under the Amnesty Law, and nothing has happened since. They do not, however, indicate whether they have filed complaints with a view to recovering their salary arrears.
The Committee's admissibility decision
6.1 The Committee considered the admissibility of the communication during its fifty-first session. It noted with concern that no reply had been received from the State party in respect of a request for clarification on the issue of exhaustion of domestic remedies, which had been addressed to it on 26 October 1993.
6.2 The Committee noted the authors' claims under article 9 and observed that their arrest and detention occurred prior to the entry into force of the Optional Protocol for Togo (30 June 1988). It further noted that the alleged violations had continuing effects after the entry into force of the Optional Protocol for Togo, in that the authors were denied reinstatement in their posts until 27 May and 1 July 1991, respectively, and that no payment of salary arrears or other forms of compensation had been effected. The Committee considered that those continuing effects could be seen as an affirmation of the previous violations allegedly committed by the State party. It therefore concluded that it was not precluded ratione temporis from examining the communications and considered that they might raise issues under article 9, paragraph 5, article 19 and article 25 (c), of the Covenant.
6.3 The Committee took note of the State party's argument that domestic remedies had not been exhausted, as well as of the authors' contention that the procedure before the Administrative Chamber of the Court of Appeal was ineffective, because no progress in the adjudication of their cases was made after their reinstatement under the Amnesty Law, and that indeed said cases appeared to have been filed. On the basis of the information before it, the Committee did not consider that an application to the Administrative Chamber of the Court of Appeal constituted an available and effective remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.
6.4 On 30 June 1994, therefore, the Committee declared the communication admissible inasmuch as it appeared to raise issues under article 9, paragraph 5, article 19 and article 25 (c), of the Covenant. It further decided, pursuant to rule 88, paragraph 2, of its rules of procedure, to deal jointly with the authors' communications.
Examination of the merits
7.1 The deadline for the submission of the State party's observations under article 4, paragraph 2, of the Optional Protocol expired on 10 February 1995. No submission has been received from the State party, in spite of a reminder addressed to it on 26 October 1995. The Committee regrets the absence of cooperation on the part of the State party as far as the merits of the authors' claims are concerned. It is implicit in article 4, paragraph 2, of the Optional Protocol that a State party must furnish the Committee, in good faith and within the imparted deadlines, with all the information at its disposal. This the State party has failed to do; in the circumstances, due weight must be given to the authors' allegations, to the extent that they have been adequately substantiated.
7.2 Accordingly, the Committee has considered the present communications 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.
7.3 The authors contend that they have not been compensated for the time they were arbitrarily arrested, contrary to article 9, paragraph 5, of the Covenant. The procedures they initiated before the Administrative Chamber of the Court of Appeal have not, on the basis of the information available to the Committee, resulted in any judgement or decision, be it favourable or unfavourable to the authors. In the circumstances, the Committee sees no reason to go back on its admissibility decision, in which it had held that recourse to the Administrative Chamber of the Court of Appeal did not constitute an available and effective remedy. As to whether it is precluded ratione temporis from considering the authors' claim under article 9, paragraph 1, the Committee wishes to note that its jurisprudence has been not to entertain claims under the Optional Protocol based on events which occurred after the entry into force of the Covenant but before the entry into force of the Optional Protocol for the State party. Some of the members feel that the jurisprudence of the Committee on this issue may be questionable and may have to be reconsidered in an appropriate (future) case. In the instant case, however, the Committee does not find any elements which would allow it to make a finding under the Optional Protocol on the lawfulness of the authors' arrests, since the arrests took place in September and December 1985, respectively, and the authors were released in April and July 1986, respectively, prior to the entry into force of the Optional Protocol for Togo on 30 June 1988. Accordingly, the Committee is precluded ratione temporis from examining the claim under article 9, paragraph 5.
7.4 In respect of the claim under article 19 of the Covenant, the Committee observes that it has remained uncontested that the authors were first prosecuted and later not reinstated in their posts, between 1986 and 1991, inter alia, for having read and, respectively, disseminated information and material critical of the Togolese Government in power and of the system of governance prevailing in Togo. The Committee observes that freedom of information and of expression are cornerstones of any free and democratic society. It is of the essence of such societies that its citizens must be allowed to inform themselves about alternatives to the political system/parties in power and that they may criticize or openly and publicly evaluate their governments without fear of interference or punishment, within the limits set by article 19, paragraph 3. On the basis of the information before the Committee, it appears that the authors were not reinstated in the posts they had occupied prior to their arrest because of such activities. The State party implicitly supports this conclusion by qualifying the authors' activities as "political offences", which came within the scope of application of the Amnesty Law of 11 April 1991; there is no indication that the authors' activities represented a threat to the rights and the reputation of others, or to national security or public order (article 19, paragraph 3). In the circumstances, the Committee concludes that there has been a violation of article 19 of the Covenant.
7.5 The Committee recalls that the authors were all suspended from their posts for a period of well over five years for activities considered contrary to the interests of the Government; in this context, it notes that Mr. Dobou was a civil servant, whereas Messrs Aduayom and Diasso, were employees of the University of Benin, which is in practice state-controlled. As far as the case of Mr. Dobou is concerned, the Committee observes that access to public service on general terms of equality encompasses a duty, for the State, to ensure that there is no discrimination on the ground of political opinion or expression. This applies a fortiori to those who hold positions in the public service. The rights enshrined in article 25 should also be read to encompass freedom to engage in political activity individually or through political parties, to debate public affairs, to criticize the Government and to publish material with political content.
7.6 The Committee notes that the authors were suspended from their posts for alleged "desertion" of the same, after having been arrested for activities deemed to be contrary to the interests of the State party's Government. Mr. Dobou was a civil servant, whereas Messrs Aduayom and Diasso were employees of the University of Benin, which is in practice state-controlled. In the circumstances of the authors' respective cases, an issue under article 25 (c) arises insofar as the authors' inability to recover their posts between 30 June 1988 and 27 May and 1 July 1991, respectively, is concerned. In this context, the Committee notes that the non-payment of salary arrears to the authors is a consequence of their non-reinstatement in the posts they had previously occupied. The Committee concludes that there has been a violation of article 25 (c) in the authors' case for the period from 30 June 1988 to 27 May and to 1 July 1991, respectively.
8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee reveal violations by Togo of articles 19 and 25 (c) of the Covenant.
9. Pursuant to article 2, paragraph 3 (a), of the Covenant, the authors are entitled to an appropriate remedy, which should include compensation determined on the basis of a sum equivalent to the salary which they would have received during the period of non-reinstatement starting from 30 June 1988. The State party is under an obligation to ensure that similar violations do not occur in the future.
10. Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to its views.
[Adopted in English, French and Spanish, the English text being the original version.]
Appendix
[Original: English]
Individual opinion of Committee member Fausto Pocar
While I concur with the Committee's findings on the issues raised by the authors' claims under articles 19 and 25 (c), I cannot subscribe to the Committee's conclusions on issues raised under article 9, paragraph 5, of the Covenant. On this issue, the Committee argues that since it is precluded ratione temporis from establishing the lawfulness of the authors' arrest and detention under article 9, paragraph 1, of the Covenant, it is also precluded ratione temporis from examining their claim to compensation under article 9, paragraph 5.I cannot share these conclusions, for the following reasons.
First, it is my personal view that the claim under article 9, paragraph 1, could have been considered by the Committee even if the alleged facts occurred prior to the entry into force of the Optional Protocol for Togo. As I had the opportunity to indicate with regard to other communications, and in more general terms when the Committee discussed its general comment on reservations (see CCPR/C/SR.1369, para. 31), the Optional Protocol provides for a procedure which enables the Committee to monitor the implementation of the obligations assumed by States parties to the Covenant, but it has no substantive impact on the obligations as such, which must be observed as from the entry into force of the Covenant. In other words, it enables the Committee to consider violations of such obligations not only within the reporting procedure established under article 40 of the Covenant, but also in the context of the consideration of individual communications. From the merely procedural nature of the Optional Protocol it follows that, unless a reservation is entered by a State party upon accession to the Protocol, the Committee's competence also extends to events that occurred before the entry into force of the Optional Protocol for that State, provided such events occurred or continued to have effects after the entry into force of the Covenant.
But even assuming, as the majority view does, that the Committee was precluded ratione temporis from considering the authors' claim under article 9, paragraph 1, of the Covenant, it would still be incorrect to conclude that it is equally precluded, ratione temporis, from examining their claim under article 9, paragraph 5. Although the right to compensation, to which any person unlawfully arrested or detained is entitled, may also be construed as a specification of the remedy within the meaning of article 2, paragraph 3, i.e. the remedy for the violation of the right set forth in article 9, paragraph 1, the Covenant does not establish a causal link between the two provisions contained in article 9. Rather, the wording of article 9, paragraph 5, suggests that its applicability does not depend on a finding of violation of article 9, paragraph 1; indeed, the unlawfulness of an arrest or detention may derive not only from a violation of the provisions of the Covenant, but also from a violation of a provision of domestic law. In the latter case, the right to compensation may exist independently of whether the arrest or detention can be regarded as the basis for a claim under article 9, paragraph 1, provided that it is unlawful under domestic law. In other words, for the purpose of the application of article 9, paragraph 5, the Committee is not precluded from considering the unlawfulness of an arrest or detention, even if it might be precluded from examining it under other provisions of the Covenant. This also applies when the impossibility of invoking other provisions is due to the fact that arrest or detention occurred prior to the entry into force of the Covenant or, following the majority view, prior to the entry into force of the Optional Protocol. Since in the present case the unlawfulness of the authors' arrest and detention under domestic law is undisputed, I conclude that their right to compensation under article 9, paragraph 5, of the Covenant has been violated, and that the Committee should have made a finding to this effect.
(Signed) Fausto Pocar
D. Communication No. 434/1990, Lal Seerattan v. Trinidad
and Tobago (views adopted on 26 October 1995, fifty-
fifth session)
Submitted by: Lal Seerattan [represented by counsel]
Victim: The author
State party: Trinidad and Tobago
Date of communication: 17 December 1990 (initial submission)
Date of decision on admissibility: 17 March 1994
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 26 October 1995,
Having concluded its consideration of communication No. 434/1990, submitted to the Human Rights Committee by Mr. Lal Seerattan 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 Lal Seerattan, a Trinidadian citizen currently detained at the State prison in Port-of-Spain. He claims to be a victim of violations by Trinidad and Tobago of article 14 of the International Covenant on Civil and Political Rights. He is represented by counsel.
The facts as presented by the author
2.1 The author states that on 27 December 1982 he was arrested and taken into custody in connection with the murder, on 26 December 1982, of Motie Ramoutar; on 28 December 1982, he was charged with the murder. The author further states that on 29 August 1983, after the preliminary examination which lasted eight months, the murder charge was reduced to manslaughter by the examining magistrate and he was released on bail. On 18 September 1984, he was rearrested and brought to trial on a murder charge. He was tried in the High Court of Port-of-Spain between 6 and 11 March 1986, was found guilty as charged and sentenced to death.
2.2 The prosecution relied mainly on evidence given by the son and the wife of the deceased. The deceased's son testified that when he and his parents returned home at about 7 p.m. on 26 December 1982, his father's employee, one B., was standing in front of the author's house; he was apparently drunk and was shouting threats at the author and his family. When his father sought to pacify B., the author's wife came out and told his father that he was responsible for B.'s misbehaviour. The deceased's son further testified that he then saw the author running out of the house, holding a harpoon-like piece of iron and chasing his father, whose escape was blocked by a fence. The author stabbed his father several times and then ran away. His evidence was in essence corroborated by his mother.
2.3 The pathologist testified that the injuries of which the deceased died could have been inflicted with the weapon that had been described by the eyewitnesses.
2.4 The author gave sworn testimony and indicated that he was relying on a cautioned statement which he had given to the police on 27 December 1982. In that statement the author had said that B. and one J., who had also been present at the locus in quo, had thrown stones at his house, that B. had threatened him and that he had asked the deceased to take B. home. The deceased had then tried to pacify B.. When B. and the deceased had started to fight, he and his family had left and had spent the night at the house of one S.P.. He further testified that relations between himself and the deceased and his family had always been cordial.
2.5 The author's wife, who testified on his behalf, gave a different version of the incident. She stated that B. and the deceased had insulted her and that the deceased and his family had thrown stones, after which she and her husband had left. She denied that her husband had been out in the street that night, as she had said in her earlier statement to the police. In light of her evidence, the judge also put the issue of provocation to the jury. Another witness appeared on the author's behalf, but his testimony was of no particular significance to the case, as he had only heard the voice outside and could not say who were the persons involved.
2.6 The Court of Appeal of Trinidad and Tobago dismissed the author's appeal on 9 March 1987. His petition for special leave to appeal to the Judicial Committee of the Privy Council was dismissed on 26 May 1988. On 3 December 1992, a warrant for the execution of the author on 8 December 1992 was issued. On 7 December 1992, attorneys in Trinidad and Tobago filed a constitutional motion on behalf of the author, mainly on the ground that executing the author after such prolonged delay would violate his constitutional rights. The author was given a stay of execution pending the outcome of a constitutional motion in another case which concerned the same issue.
2.7 On 4 January 1994, the author was informed that his death sentence had been commuted to life imprisonment by order of the President of Trinidad and Tobago, as a result of the findings of the Judicial Committee of the Privy Council in the case of Earl Pratt and Ivan Morgan v. the Attorney-General of Jamaica.a
The complaint
3.1 The author claims that his attorney did not represent him adequately and that, as a result, his trial was unfair.b He states that he had wanted to admit the crime and defend himself by invoking legitimate self-defence on account of three full years of provocation that preceded the crime in which the deceased and his family had, among other things, beaten his daughter. He points out that, by pleading guilty to manslaughter at the preliminary hearing, he had already admitted the crime but that at the trial his attorney "took him off the scene" by basing the defence on alibi. He complains that his attorney never challenged the absence of forensic evidence before the High Court, that he did not verify what his wife had previously said to the police and that he did not raise any objections against the absence of the photographer, who had taken pictures of the locus in quo.c The author further complains that his attorney simply abandoned the appeal, as he did not argue any grounds of appeal on his behalf.d In this context, the author adds that despite this, "he (the attorney) still had the guts to tell the Chief Justice that I am already in prison and if he (the Chief Justice) could give me a five-year prison term because my case was really one of provocation".
3.2 Counsel submits that there are several factors in the author's case which give reason to believe that he did not receive a fair trial. With regard to the absence of scientific evidence at the trial, counsel concedes that it is open for the defence to comment on the absence of such evidence in order to undermine the prosecution case but that the defence would normally not demand that it be produced. The absence of scientific or other evidence was, however, of particular importance in the author's case, since the prosecution's case rested entirely upon the identification of the author by the deceased's son and wife in conditions of partial darkness and when one of those witnesses, namely, the wife of the deceased, had poor eyesight and was not wearing her glasses. Furthermore, given the witnesses' close relationship to the deceased and the history of bad relations between the two families, there was ample reason to question the reliability of the witnesses. Counsel further submits that in those circumstances the judge ought to have warned the jury to be cautious. Instead, the judge said: "I do not think [...] that you would have any difficulty in the identification of the people involved." According to counsel, that amounted to a misdirection which resulted in an unfair trial.
3.3 Counsel further points out that crucial witnesses in the case, like B., J. and S.P., were not called to court to testify and that there was a delay of more than three years between the author's arrest and the trial. He submits that such a delay is particularly undesirable in cases in which identification by witnesses is the main issue. The above is said to amount to violations of article 14 of the Covenant.
The State party's observations on admissibility
4. By submission of 10 September 1993, the State party confirms that the author has exhausted all domestic remedies in his criminal case.
The Committee's admissibility decision
5.1 The Committee considered the admissibility of the communication during its fiftieth session.
5.2 The Committee considered inadmissible the author's claims relating to the evaluation of evidence and to the instructions given by the judge to the jury. The Committee recalled that it is in principle for the appellate courts of States parties to the Covenant, and not for the Committee, to evaluate facts and evidence in a particular case or 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 manifestly violated his obligation of impartiality. The material before the Committee did not show that the trial judge's instructions or the conduct of the trial suffered from such defects.
5.3 The Committee further considered that the author and his counsel had failed to substantiate, for purposes of admissibility, the contention that the author was not adequately represented during the trial and on appeal, and that his trial was unfair because crucial witnesses in the case were not called to testify in court.
5.4 The Committee considered that the period between the author's initial arrest, on 27 December 1982, and his conviction on 11 March 1986, might raise an issue under article 14, paragraph 3 (c), of the Covenant, which should be considered on the merits.
5.5 Consequently, on 17 March 1994, the Human Rights Committee declared the communication admissible in as much as it appeared to raise issues under article 14, paragraph 3 (c), of the Covenant.
Further information received from the State party
6. The State party, by submission of 19 April 1995, confirms that the author's sentence has been commuted, on 31 December 1993, to life imprisonment.
Issues and proceedings before the Committee
7.1 The Committee has considered the communication in the light of all the information provided by the parties. It notes with concern that, following the transmittal of the Committee's decision on admissibility, the State party has limited itself to informing the Committee about the commutation of the author's death sentence and that no information has been received from the State party clarifying the matter raised by the present communication. The Committee recalls that it is implicit in article 4, paragraph 2, of the Optional Protocol, that a State party examine in good faith all the allegations brought against it and that it provide the Committee with all the information at its disposal. In the light of the failure of the State party to cooperate with the Committee on the matter before it, due weight must be given to the author's allegations.
7.2 The Committee notes that the information before it shows that the author was arrested on 27 December 1982, that he was released on bail on 29 August 1983 after the preliminary examination of the case had been concluded, that he was rearrested on 18 September 1984, that the trial against him commenced on 6 March 1986 and that he was convicted and sentenced to death on 11 March 1986. Although it is not clear from the material before the Committee whether there were one or two preliminary enquiries, or whether the original committal was for manslaughter or murder, the Committee considers that, in the circumstances of the instant case, the period of over three years between the author's initial arrest and the trial against him does, in the absence of any explanations from the State party justifying the delay, amount to a violation of article 14, paragraph 3 (c), of the Covenant.
8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 14, paragraph 3 (c), of the International Covenant on Civil and Political Rights.
9. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Mr. Seerattan with an effective remedy. The Committee has noted that the State party has commuted the author's death sentence and recommends that, in view of the fact that the author has spent over 10 years in prison, of which seven years and nine months have been spent on death row, the State party consider the author's early release. The State party is under an obligation to ensure that similar violations do not occur in the future.
10. Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's views.
[Adopted in English, French and Spanish, the English text being the original version.]
Notes
a Privy Council Appeal No. 10 of 1993; judgement delivered on 2 November 1993.
b The author was represented by the same attorney at all stages of the judicial proceedings against him, i.e. preliminary hearing, trial and appeal to the Court of Appeal.
c It appears from the notes of evidence of the trial that the photographer had left the country and that the author's attorney made an application to visit the locus in quo. The prosecution objected because the author's house had burned down after the incident. The application was then withdrawn.
d It appears from the written judgement of the Court of Appeal that the attorney admitted before the Court of Appeal that, having examined the evidence in the case as well as the judge's summing-up to the jury, he could find no ground to argue on his client's behalf. The Court of Appeal agreed with the attorney but stated that "for the record we should deal briefly with the facts of the case".
E. Communication No. 454/1991, Enrique García Pons v. Spain
(views adopted on 30 October 1995, fifty-fifth session)
Submitted by: Enrique García Pons
Alleged victim: The author
State party: Spain
Date of communication: 29 December 1990 (initial submission)
Date of decision on admissibility: 30 June 1994
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 30 October 1995,
Having concluded its consideration of communication No. 454/1991, submitted to the Human Rights Committee by Mr. Enrique García Pons 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 author of the communication is Enrique García Pons, a Spanish citizen born in 1951, currently residing in Badalona, Spain. He claims to be a victim of violations by Spain of article 14, paragraph 1, article 25 (c), and article 26 of the International Covenant on Civil and Political Rights.
The facts as submitted
2.1 The author is a civil servant, assigned to the sub-office of the National Employment Agency (Instituto Nacional de Empleo) in the municipality of Badalona. On 20 December 1986, he was appointed substitute for the District Judge of Badalona, a function which he performed until 16 October 1987; following his nomination, he requested his employer, the Ministry of Labour and Social Security, to formalize his change of status and to certify that he was, in terms of administrative status, assigned to "special services". The Ministry did not grant his request.
2.2 Later in 1987, the author was again appointed substitute District Judge of Badalona; he did not, however, assume his functions, since the post of District Judge had been taken up by a new judge. The author therefore requested unemployment benefits (prestaciones de desempleo). Again, he requested the formal recognition of his administrative status, but his employer did not process his request. The same situation prevailed in 1988; the author therefore filed a complaint with the competent administrative tribunal against the Instituto Nacional de Empleo, requesting unemployment benefits. On 27 May 1988, the Juzgado de lo Social No. 9 (Barcelona) rejected his request because the author was free to resume his former post and therefore did not satisfy the requirements under the unemployment benefits scheme. It was argued that what the author intended was to leave his post at the lower scale in order to claim unemployment benefits at a higher scale, while preparing his entrance into a judicial career.
2.3 On 11 May 1989, the Instituto Nacional de Empleo declared the author to be on "voluntary leave of absence" since the end of 1986. The author contested that decision and continued to assume, whenever called upon to do so, the functions of a substitute district judge. He argued that since all substitute judges contribute to unemployment benefit insurance, he himself should be able to benefit from its coverage. He appealed on those grounds against the decision of 27 May 1988 to the Tribunal Superior de Justicia de Cataluña which, on 30 April 1990, dismissed his appeal.
2.4 On 22 June 1990, the author filed an appeal (recurso de amparo) with the Constitutional Tribunal. On 21 September 1990, the Constitutional Tribunal rejected his complaint. The author re-petitioned the Constitutional Tribunal on 10 November 1990, pointing out that he was the only substitute judge in all of Spain to whom unemployment benefits had been denied and that that situation violated his constitutional rights. On 3 December 1990, the Constitutional Tribunal confirmed its earlier decision. With this, the author submits, available domestic remedies have been exhausted.
The complaint
3. The author alleges that he is a victim of denial of equality before the courts, as provided for in article 14 of the Covenant; of discrimination in access to public service, in violation of article 25 (c); and of discrimination because of denial of unemployment benefits, in contravention of article 26.
The State party's submission on admissibility
4. In a submission dated 17 September 1991, the State party stated that "the communication of Mr. García Pons satisfies, in principle, the conditions of admissibility set forth in articles 3 and 5, paragraph 2, of the Optional Protocol ... and that it is not incompatible with the provisions of the Covenant". While not objecting to the communication's admissibility, it indicated that it would, in due course, make submissions on the merits.
The Committee's admissibility decision
5.1 Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.
5.2 The Committee found that the author had substantiated his allegations, for purposes of admissibility, and was satisfied that the communication was not inadmissible under articles 1, 2, and 3 of the Optional Protocol. It further noted that the State party conceded that domestic remedies had been exhausted.
6. On 30 June 1994, the Human Rights Committee therefore decided that the communication was admissible inasmuch as it may raise issues under articles 14, 25 and 26 of the Covenant.
The State party's submissions on the merits
7.1 In its submissions of 13 February and 15 June 1995, the State party contests any violations of the Covenant. As to the facts of the case, the State party indicates that the author is not unemployed, but is a civil servant, and that although on several occasions he has been given leave to assume the post of a substitute judge, he has always been able to return to his established post; thus, he has never been unemployed and, accordingly, cannot qualify for unemployment benefits. The author's submission suffers from the contradiction between his desire to be a judge on a permanent appointment and his unwillingness to give up the security of his status as civil servant in his current position.
7.2 As to the author's allegation that he is the only unemployed substitute judge who does not receive unemployment benefits, the State party states that the author has not cited a single example of a person in the same circumstances as himself, i.e. a civil servant on temporary leave from an established post, who has been treated differently. Only those unemployed substitute judges receive unemployment benefits who are, in fact, unemployed. This is not the author's situation. Nor can he expect the adoption of special legislation for himself to allow him to retain his civil service post while not performing its functions and, instead, preparing for competitive exams while receiving unemployment benefits on his expired substitute judge assignment.
7.3 With regard to an alleged violation of article 14 of the Covenant, the State party affirms that the author has had equal access to all Spanish courts, including the Constitutional Court, and that all of his complaints were examined fairly by the competent tribunals, as evidenced in the respective judgements and other submissions. Admittedly, the author disagrees with the disposition of his case, but he has not substantiated a claim that procedural guarantees were not observed by the various instances involved.
7.4 As to the alleged violation of article 25 of the Covenant, the State party points out that at no time in the many proceedings engaged in by the author did he invoke the right protected under article 25 of the Covenant. Moreover, that issue is not germane to the case, which focuses not on the right of equal access to public service but on the alleged denial of unemployment benefits.
The author's comments
8.1 In his comments, dated 29 March and 29 July 1995, the author reiterates his claim to be a victim of discrimination and contends that the relevant Spanish laws are incompatible with the Covenant, in particular the 1987 rules and circular 10/86 of the Under-Secretary in the Ministry of Justice concerning the status of substitute judges. He further alleges that the lack of permanence and the insecurity of substitute judges endangers the independence of the judiciary.
8.2 He rejects the State party's contention that he has primarily economic concerns and expects special legislation for himself. Far from having earned substantially more as a judge, he was compelled to return to his civil service post in order to attend to his minimum needs. He further stresses that, during various periods from 1986 to 1992, he served as a devoted substitute judge and paid unemployment insurance. He contends that the relevant legislation and practice should be adjusted to ensure that persons who pay unemployment insurance benefit therefrom when the terms of temporary employment end, notwithstanding the possibility of returning to another post in the civil service.
8.3 The author concludes that since he is the only substitute judge who does not receive unemployment benefits, he is a victim of discrimination within the meaning of article 26 of the Covenant.
Review of admissibility and examination of the merits
9.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol.
9.2 With regard to the author's allegations concerning article 25 (c) of the Covenant, the Committee notes that the State party has submitted that the author never invoked the substance of that right in any proceedings before Spanish tribunals; the author has not claimed that it would not have been open to him to invoke that right before the local courts. Therefore, pursuant to rule 93, paragraph 4, of the Committee's rules of procedure, the Committee sets aside that part of its admissibility decision concerning article 25 of the Covenant and declares it inadmissible because of non-exhaustion of domestic remedies.
9.3 Before addressing the merits in the case, the Committee observes that, although the right to social security is not protected, as such, in the International Covenant on Civil and Political Rights, issues under the Covenant may nonetheless arise if the principle of equality contained in articles 14 and 26 of the Covenant is violated.
9.4 In this context, the Committee reiterates its jurisprudence that not all differentiation in treatment can be deemed to be discriminatory under the relevant provisions of the Covenant.a A differentiation which is compatible with the provisions of the Covenant and is based on reasonable grounds does not amount to prohibited discrimination.
9.5 The Committee notes that the author claims to be the only unemployed substitute judge who does not receive unemployment benefits. The information before the Committee reveals, however, that the relevant category of recipients of unemployment benefits encompasses only those unemployed substitute judges who cannot immediately return to another post upon termination of their temporary assignments. The author does not belong to that category, since he enjoys the status of a civil servant. In the Committee's opinion, a distinction between unemployed substitute judges who are not civil servants on leave and those who are cannot be deemed arbitrary or unreasonable. The Committee therefore concludes that the alleged differentiation in treatment does not entail a violation of the principle of equality and non-discrimination enunciated in article 26 of the Covenant.
9.6 With regard to the author's allegations concerning article 14, the Committee has carefully studied the various judicial proceedings engaged in by the author in Spain, as well as their disposition, and concludes that the evidence submitted does not support a finding that he has been denied a fair hearing within the meaning of article 14, paragraph 1, of the Covenant.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, finds that the facts before it do not reveal a violation by Spain of any provision of the International Covenant on Civil and Political Rights.
[Adopted in English, French and Spanish, the English text being the original version.]
Notes
a See Official Records of the General Assembly, Forty-second Session, Supplement No. 40 (A/42/40), annex VIII.D, communication No. 182/1984 (Zwaan-de Vries v. the Netherlands), views adopted on 9 April 1987, para. 13; and ibid., Fiftieth Session, Supplement No. 40 (A/50/40), vol. II, annex X.K, communication No. 516/1992 (Simunek et al. v. the Czech Republic), views adopted on 19 July 1995, para. 11.5.
F. Communication No. 459/1991, Osbourne Wright and
Eric Harvey v. Jamaica (views adopted on
27 October 1995, fifty-fifth session)
Submitted by: Osbourne Wright and Eric Harvey
[represented by counsel]
Victims: The authors
State party: Jamaica
Date of communication: 27 February 1991 (initial submission)
Date of decision on admissibility: 17 March 1994
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 27 October 1995,
Having concluded its consideration of communication No. 459/1991, submitted to the Human Rights Committee by Messrs Osbourne Wright and Eric Harvey 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.
1. The authors of the communication are Osbourne Wright and Eric Harvey, two Jamaican citizens at the time of submission awaiting execution at St. Catherine District Prison, Jamaica. They claim to be victims of a violation by Jamaica of articles 6, 7, 10 and 14 of the International Covenant on Civil and Political Rights. They are represented by counsel.
The facts as submitted
2.1 The authors were charged with the murder of Timothy Clarke in December 1980 and were committed for trial in October 1981. In July 1983, at the conclusion of their trial, the jury did not return a unanimous verdict and a retrial was ordered. The retrial took place in the Home Circuit Court of Kingston. On 29 April 1988, the authors were found guilty and sentenced to death. The Court of Appeal of Jamaica dismissed their appeals on 10 October 1988 and produced a written judgement on 15 November 1988. In February 1991, the Judicial Committee of the Privy Council dismissed the authors' petition for special leave to appeal. With that, it is submitted, domestic remedies have been exhausted.
2.2 At trial, the case for the prosecution was that the authors and one or two other men, on 2 November 1980, after having robbed a butcher of 20,000 Jamaican dollars, stopped a vehicle in the district of Pepper, parish of St. Elizabeth, under the pretext of needing help. They shot and wounded the driver, Stanville Beckford, and then shot and killed Timothy Clarke, a passenger, who was trying to escape. Mr. Beckford testified that, before losing consciousness, he saw Mr. Wright shooting Mr. Clarke. Kenneth White, who had been talking with the butcher prior to the robbery, identified Mr. Harvey as one of the participants. The butcher, a Mr. Francis, made dock identifications of both Mr. Wright and Mr. Harvey as participants in the robbery. According to the testimony given by Detective Sergeant Ashman during the preliminary hearing, Mr. Wright, after his arrest on 2 November 1980, admitted the crime, indicated the hiding place of the murder weapon and directed the police to the addresses of his accomplices, Mr. Harvey and one Mr. Campbell. Money was found on both Mr. Wright and Mr. Harvey, in bundles of 200 Jamaican dollars. The butcher's watch was found on Mr. Harvey. At the time of the retrial, Detective Ashman had died, and his deposition was admitted as evidence.
2.3 The defence was based on alibi. Mr. Wright states that he was at his girlfriend's house all morning and that he only left her place in the afternoon to buy some vegetables and to deposit 500 Jamaican dollars in his mother's saving account. It was then that he was arrested. He denies having admitted his participation in the killing to the police. Mr. Harvey states that he is a fisherman and that he was at Old Harbour Bay, mending his fishing nets, on 2 November 1980 and that he did not know Mr. Wright or Mr. Campbell. He was arrested on 4 November 1980, when he was just about to go to sea. He denies having been in possession of the butcher's watch or of any watch similar to it.
The complaint
3.1 The authors claim that they did not have a fair trial. More particularly, they allege that the judge's summing-up was biased in favour of the prosecution. The judge allegedly did not give proper guidance to the jury on how to assess the evidential value of Detective Ashman's deposition, and failed to warn the jury of the dangers of the admissibility of the evidence contained in the deposition, particularly in the light of the inability of the defendants to subject the evidence to cross-examination. Detective Ashman gave his deposition at the preliminary hearing before the Gun Court in 1981. Although Mr. Harvey was represented by a lawyer, no lawyer was present for Mr. Wright and no effective cross-examination of Mr. Ashman's evidence took place during the preliminary hearing. The judge, in his summing-up, conveyed the impression that the authors' failure to cross-examine Mr. Ashman during the preliminary inquiry justified conclusions adverse to them, without taking into account the absence of a lawyer for Mr. Wright and the possible lack of instructions for Mr. Harvey's counsel. The judge further did not sufficiently explain the danger of dock identifications and did not properly draw the attention of the jury to irregularities during the identification parade held for Mr. Harvey. Mr. Harvey claims that he was identified by Mr. White only at a second identification parade, which was unfairly conducted since the witness was given an opportunity to see him before the parade was held. Mr. Harvey was further only identified by Mr. Beckford and Mr. Francis in dock identifications that took place more than seven years after the event; both witnesses had failed to identify him at the identification parade. Mr. Wright claims furthermore that Mr. Beckford's dock identification of him was fraught with dangers, since Mr. Beckford had employed Mr. Wright five years before and the employment had ended in disagreement. The failure of the judge to give proper instructions to the jury with regard to these issues is said to amount to a violation of article 14, paragraph 1, of the Covenant.
3.2 It is also alleged that the judge refused to allow the defence to call a witness to prove the contents of the police station diary, which contained important references that would test the credibility of Mr. Ashman's uncorroborated statement. It is submitted that the defence learned the identity of the police officer who made the entry in the diary only during the course of the trial, despite earlier efforts to obtain information at the police station. The defence therefore had no opportunity to have the police officer ready before the commencement of the trial. The witness arrived after the defence had completed its case but before the judge had started his summing-up. The authors claim that there was therefore no reason for the judge to refuse to have the witness heard and to have the contents of the police diary put to the jury. It is stated that the judge's refusal to allow the witness to be heard violates article 14, paragraphs 1 and 3 (e), of the Covenant.
3.3 The authors further claim that article 14, paragraph 3 (c), has been violated in their case, since they were convicted some eight years after the incident. They contend that there is no reasonable excuse for that delay. The authors attach a schedule of the case history, which shows that a trial date was set on numerous occasions but was then postponed to a later date because of the absence of either accused, defence lawyers or witnesses. In this context, the authors note that Mr. Wright was released from custody on 23 February 1984, after having been acquitted on another charge. He did not volunteer to appear and was rearrested in the summer of 1986. The trial was not held immediately in 1986, but postponed until April 1988. The delay is said to be detrimental to the defence in view of the prosecution's reliance on dock identifications of the accused, made eight years after the incident took place. Also, in Mr. Wright's case, his main alibi witness, his then girlfriend, who gave evidence at the first trial, could no longer be found. Detective Ashman died between the two trials, and the evidence from his deposition could not, therefore, be subjected to cross-examination. In this context, counsel notes that, at the hearing before the Judicial Committee of the Privy Council, their Lordships stated that they were not in a position to comment on the inefficiency of the judicial machinery in Jamaica.
3.4 The authors also claim that their rights under article 14, paragraphs 3 (b) and (d) of the Covenant have been violated. They claim that they suffered from a lack of adequate legal representation throughout the entire judicial process in Jamaica. Mr. Harvey submits that he was represented by a privately retained lawyer during the first trial, but that he depended on legal aid for the retrial. He claims that the legal aid attorney who represented him did not take a statement from him and that he met him for the first time in April 1988, at the beginning of the trial. Mr. Wright depended on legal aid for the entire process; he was not represented at the preliminary hearing. It is submitted that the lack of preparation of the defence led to a failure to properly cross-examine the prosecution witnesses, to lack of communication between the authors and their lawyers and to the lack of attendance of witnesses for the defence. That is said to reflect the fundamental inadequacy of the Jamaican legal aid system. In this context, the authors note that during the retrial the judge criticized the defence on several occasions for not doing their work properly.
3.5 As regards the appeal, it is submitted that Mr. Wright was not informed about the date of the appeal hearing, that his lawyer did not consult him before the hearing and that he only learned about the appeal when his lawyer informed him that it had failed. Mr. Harvey states that he was informed by his lawyer, on 17 August 1988, that he was not able to represent him before the Court of Appeal. A second letter, dated 18 October 1988, informed him that his appeal was dismissed. It appeared that his lawyer had represented him at the hearing, despite his earlier statement that he would not, and had conceded that he could not support the appeal. It is argued that that left the authors without effective representation at the appeal, thereby violating their right to a fair trial.
3.6 The authors also claim that the length of their detention in deplorable circumstances constitutes a violation of the Covenant, notably of article 10, paragraph 1. Reference is made to a report prepared by a non-governmental organization describing the conditions prevailing on death row in Jamaica. It is stated that the authors are given insufficient food of low nutritional value, that there is no access to recreational and sports facilities and that the authors spend an excessive amount of time locked up in cells. Mr. Wright submits that he fell ill and had to be taken to Spanish Town Hospital in March 1991.
The State party's submission on admissibility and the authors' comments thereon
4. By submission of 18 November 1991, the State party argued that the communication was inadmissible on the ground of failure to exhaust domestic remedies. It conceded that the authors had exhausted their criminal appeal possibilities, but argued that they had failed to pursue the remedy provided by the Jamaican Constitution. In this connection, the State party submitted that articles 6, 7 and 14 of the Covenant were coterminous with sections 14, 17 and 20 of the Constitution. Section 25 of the Constitution provides that any person who alleges that any of his basic rights have been violated may apply to the Supreme Court for redress.
5. In his comments on the State party's submission, counsel referred to the Committee's jurisprudence that, in the absence of legal aid, the constitutional motion is not a remedy that needs to be exhausted for purposes of admissibility of a communication under the Optional Protocol.
The Committee's admissibility decision
6.1 The Committee considered the admissibility of the communication at its fiftieth session.
6.2 With regard to the State party's claim that the communication was inadmissible on the ground of failure to exhaust domestic remedies, the Committee recalled its constant jurisprudence that for purposes of article 5, paragraph 2 (b), of the Optional Protocol, domestic remedies must be both effective and available. The Committee noted that the Supreme Court of Jamaica had, in recent cases, allowed applications for constitutional redress in respect of breaches of fundamental rights, after the criminal appeals in those cases had been dismissed. However, the Committee also recalled that the State party had indicated on several occasionsa that no legal aid was made available for constitutional motions. The Committee considered that, in the absence of legal aid, a constitutional motion did not, in the circumstances of the instant case, constitute an available remedy which needed to be exhausted for purposes of the Optional Protocol. In this respect, the Committee therefore found that it was not precluded by article 5, paragraph 2 (b), from considering the communication.
6.3 The Committee considered inadmissible the part of the authors' claims which related to the instructions given by the judge to the jury with regard to the evaluation of the evidence and the value of the identifications. The Committee reiterated that it was in principle for the appellate courts of States parties, and not for the Committee, to review specific instructions to the jury by the judge, unless it was clear that the instructions were arbitrary or amounted to a denial of justice, or that the judge manifestly violated his obligations of impartiality. The material before the Committee did not show that the judge's instructions to the jury in the instant case suffered from such defects.
6.4 The Committee considered that the alleged lack of legal representation for Mr. Wright at the preliminary hearing and the claim that counsel in fact abandoned the appeal without prior consultation with the authors, as well as the delay of almost five years between the first trial and the retrial, might raise issues under article 14, paragraphs 3 (b), (c) and (d), of the Covenant, which should be examined on the merits.
6.5 The Committee considered inadmissible the authors' claim that their lengthy stay on death row, under allegedly deplorable circumstances, violated the Covenant, since the authors had failed to show what steps they had taken to bring the complaint to the attention of the authorities in Jamaica.
7. Accordingly, the Human Rights Committee decided that the communication was admissible insofar as it appeared to raise issues under article 14, paragraphs 3 (b), (c) and (d), of the Covenant. Under rule 86 of the Committee's rules of procedure, the State party was requested not to carry out the death sentence against the authors while their communication was under consideration by the Committee.
The State party's submission on the merits and the authors' comments
8.1 By submission of 7 November 1994, the State party states that it is making inquiries into Mr. Wright's allegation that he was not represented at the preliminary hearing. As regards the claim that the period of five years between the end of the first trial and the beginning of the retrial constitutes undue delay in violation of article 14, paragraph 3 (c), the State party argues that the delay was not wholly attributable to the State. In this context, the State party notes that the retrial was postponed on several occasions because of the absence of either defence counsel or the accused, and points out that Mr. Wright was at large for two years, during which period the retrial could not proceed.
8.2 With regard to the appeal, the State party submits that an examination of the Court of Appeal's records shows that counsel for Mr. Wright did in fact argue the appeal on his behalf. Moreover, the State party states that there is no indication that Mr. Wright ever signalled his dissatisfaction with his legal representation to the relevant authorities and that, in those circumstances, the State party cannot be held responsible for the alleged improper representation.
8.3 On 15 September 1995, the State party informs the Committee that the authors' sentences have been commuted to life imprisonment.
9.1 In his response to the State party's submission, Mr. Wright reiterates that his legal aid counsel was absent at the preliminary hearing and that the magistrate should either have adjourned the hearing or provided him with a new legal aid lawyer. As regards the delay in obtaining a retrial, Mr. Wright acknowledges that he was at large for two years, during which he could not be brought to trial. He submits, however, that that does not explain why the retrial against his co-defendant did not take place and why it took another two years after his rearrest to begin with the retrial. As regards the appeal, Mr. Wright states that he has never claimed that his counsel did not argue the appeal but only that he was not informed beforehand when the appeal was going to take place and therefore had no occasion to consult with his counsel.
9.2 Counsel for the authors, by submission of 3 April 1995, argues that, taking into account that the preliminary hearing took place 14 years ago, the State party will never be able to explain satisfactorily why the preliminary hearing proceeded in the absence of Mr. Wright's legal representative. In this context, counsel recalls that Mr. Wright was only 18 years old at the time and not familiar with the criminal process. At the hearing he failed to cross-examine the prosecution witnesses, in particular Detective Ashman. The failure to cross-examine was held against the defence by the judge at the authors' retrial, when the opportunity to cross-examine Detective Ashman no longer existed. In this context, it is stated that Detective Ashman was cross-examined at the first trial but that no transcript of the first trial was available at the retrial. It is said that the information contained in the transcript might have helped to assess the value of the identification evidence and that the absence of the trial transcript seriously prejudiced the authors' defence.
9.3 It is further accepted that the State party cannot be held responsible for the two years' delay in the retrial for Mr. Wright while he was at large. However, counsel points out that the retrial was ordered in July 1983 and that Mr. Wright was released from custody in February 1984, and argues that there was no reason why the retrial could not have taken place before February 1984. Alternatively, after Mr. Wright's rearrest in early 1986, there was no reason why a trial date could not have been fixed immediately. Counsel argues that, as a consequence of the delay, the authors' defence was seriously prejudiced, since Detective Ashman's evidence could only be read and not cross-examined, dock identifications took place seven years after the event and Mr. Wright's main alibi witness was nowhere to be found.
9.4 As regards Mr. Harvey, counsel refers to his submissions made for Mr. Wright above and adds that there is no reason why Mr. Harvey could not have been tried even while Mr. Wright was at large. Counsel points out that, at the retrial, Mr. Harvey was identified in the dock by two of the witnesses seven years after the event, but that the same witnesses had been unable to identify him at an identification parade shortly after the incident. Further, at the retrial, the alibi witness called for Mr. Harvey could not exactly remember the date when he had been with Mr. Harvey, thereby weakening his evidence. It is submitted that, if the retrial had been held earlier, the witness' memory might have been clearer.
9.5 Counsel recalls that counsel for Mr. Harvey on appeal conceded that there were no merits to the appeal and argues that the factual abandonment of the appeal by Mr. Harvey's lawyer constitutes a violation of article 14, paragraphs 3 (b) and (d) of the Covenant.
Examination of the merits
10.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol.
10.2 The Committee notes that the State party has stated that it will investigate Mr. Wright's allegation about the lack of legal representation at the preliminary hearing but has not provided any further information. In the circumstances, the Committee considers that it is undisputed that Mr. Wright was not represented by counsel at the preliminary hearing of the charges against him. The Committee affirms that legal assistance must be made available to an accused who is charged with a capital crime. This applies not only to the trial and relevant appeals, but also to any preliminary hearings relating to the case. The Committee notes that there is no indication that the lack of representation at the preliminary hearing was attributable to Mr. Wright. The Committee finds therefore that the failure to make legal representation available to Mr. Wright at the preliminary hearing constitutes a violation of article 14, paragraph 3 (d), of the Covenant.
10.3 The Committee notes that the first trial against the authors ended on 29 July 1983 with a hung jury and that a retrial was ordered. It appears from the file that a trial date was set for 22 February 1984 and that the trial was postponed because the accused Wright was no longer in custody. Although Mr. Harvey remained available for trial and regular hearings were being held throughout and trial dates were set on several occasions, the retrial did not start until 26 April 1988, 22 months after Mr. Wright's rearrest. The Committee finds that, in the circumstances of the instant case, such a delay cannot be deemed compatible with the provisions of article 14, paragraph 3 (c), of the Covenant.
10.4 Mr. Wright has claimed that his counsel did not consult with him beforehand about the appeal and that that indicates that he was not effectively represented. The Committee notes that Mr. Wright was represented at the appeal by the lawyer who defended him at trial, and that counsel filed and argued several grounds of appeal, challenging several decisions made by the judge and questioning his directions to the jury. In these specific circumstances, the Committee finds that Mr. Wright's right to an effective representation on appeal has not been violated.
10.5 As regards Mr. Harvey's claim that he was not effectively represented on appeal, the Committee notes that the Court of Appeal judgement shows that Mr. Harvey's legal aid counsel for the appeal conceded at the hearing that there was no merit in the appeal. The Committee recalls that while article 14, paragraph 3 (d), of the Covenant does not entitle the accused to choose counsel provided to him free of charge, the Court should ensure that the conduct of the case by the lawyer is not incompatible with the interests of justice. While it is not for the Committee to question counsel's professional judgement, the Committee considers that in a capital case, when counsel for the accused concedes that there is no merit in the appeal, the Court should ascertain whether counsel has consulted with the accused and informed him accordingly. If not, the Court must ensure that the accused is so informed and given an opportunity to engage another counsel. The Committee is of the opinion that, in the instant case, Mr. Harvey should have been informed that his counsel was not going to argue any grounds in support of the appeal, so that he could have considered any remaining options open to him. In the circumstances, the Committee finds that Mr. Harvey was not effectively represented on appeal, in violation of article 14, paragraphs 3 (b) and (d).
10.6 The Committee is of the opinion that the imposition of a sentence of death upon conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is possible, a violation of article 6 of the Covenant. As the Committee noted in its general comment 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 [of conviction and sentence] by a higher tribunal".b In the present case, since the final sentence of death was passed without legal representation for Mr. Wright at the preliminary hearing, without due respect for the requirement that an accused be tried without undue delay, and without effective representation for Mr. Harvey on appeal, there has consequently also been a violation of article 6 of the Covenant.
11. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 14, paragraph 3 (b), (c) and (d), and consequently of article 6, of the International Covenant on Civil and Political Rights.
12. The Committee is of the view that Osbourne Wright and Eric Harvey are entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective remedy. The Committee is of the opinion that in the circumstances of the case, this entails their release. The State party is under an obligation to ensure that similar violations do not occur in the future.
13. Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to 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-seventh Session, Supplement No. 40 (A/47/40), annex IX.J, communication No. 283/1988 (Little v. Jamaica), views adopted on 1 November 1991; ibid., Forty-ninth Session, Supplement No. 40 (A/49/40), vol. II, annex IX.A, communication No. 321/1988 (Thomas v. Jamaica), views adopted on 19 October 1993; and ibid., annex IX.G, communication No. 352/1989 (Douglas, Gentles and Kerr v. Jamaica), views adopted on 19 October 1993.
b Ibid., Thirty-seventh Session, Supplement No. 40 (A/37/40), annex V, general comment No. 6 (16), para. 7.
G. Communication No. 461/1991, George Graham and Arthur Morrison
v. Jamaica (views adopted on 25 March 1996, fifty-sixth
session)
Submitted by: George Graham and Arthur Morrison
[represented by counsel]
Victims: The authors
State party: Jamaica
Date of communication: 18 March 1991 (initial submission)
Date of decision on admissibility: 12 October 1994
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 25 March 1996,
Having concluded its consideration of communication No. 461/1991, submitted to the Human Rights Committee by Messrs George Graham and Arthur Morrison 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.
1. The authors of the communication are George Graham and Arthur Morrison, two Jamaican citizens at the time of submission of the communication awaiting execution at St. Catherine District Prison, Jamaica. After the submission of the communication, Mr. Morrison died during an incident at St. Catherine District Prison, on 31 October 1993. Mr. Graham's sentence was commuted to life imprisonment on 29 May 1995. The authors claim to be the victims of violations by Jamaica of articles 6, 7 and 14, paragraphs 1, 3 and 5, of the International Covenant on Civil and Political Rights. They are represented by counsel.
The facts as submitted by the authors
2.1 The authors were jointly charged with the murder, on 8 May 1984, of one O. B. On 16 April 1986, after a trial lasting three days, they were found guilty as charged and sentenced to death in the Home Circuit Court of Kingston. The Court of Appeal of Jamaica dismissed their application for leave to appeal on 12 October 1987. On 13 December 1990, the Judicial Committee of the Privy Council dismissed their petition for special leave to appeal. With that, it is submitted, available domestic remedies have been exhausted. In December 1992, the authors' offence was classified as capital murder under section 7 of the Offences against the Person (Amendment) Act, 1992.
2.2 O. B. was shot in his parents' flat, in the presence of his parents and three sisters. The case against the authors rested on the evidence given by one of the victim's sisters, S. B., who identified the authors from the dock; no identification parade was held. S. B. testified that on 8 May 1984, at about 7 p.m., five armed men had forced their way into the flat; among these men she recognized George Graham, whom she knew by his nickname "Money-man", and Arthur Morrison, whom she also knew. George Graham allegedly said "Don't shoot because baby is inside" and then tried to pull O. B. out of the flat. O. B. resisted and ran into an adjacent bedroom, where his father was. Then a group of about 15 men entered the flat, all of them armed, and Arthur Morrison allegedly said: "Mek we kill the boy". O. B. was shot twice in the head by two other men; his father did not identify any of them. S. B. further testified that, upon leaving, one of the men grabbed her sister's golden chain, but that another man ordered him to give it back since "they had not come to rob, but to kill".
2.3 The prosecution argued that, although the authors had not actually killed O. B., they were participants in a joint plan or conspiracy to murder him and were therefore guilty of murder on the basis of the doctrine of common design. The authors made an unsworn statement from the dock, claiming that they had been elsewhere at the time of the crime. At the close of the prosecution's case, Mr. Graham's legal representative made a submission of "no case to answer", which was dismissed by the judge. In her summing-up to the jury, the judge pointed out, inter alia, that it was not necessary to hold an identification parade when the eyewitness already knew the accused.
2.4 Throughout the judicial proceedings, the authors were represented by legal aid lawyers. It appears from the trial transcript that the attorneys assigned to the authors for the trial had previously appeared together for both authors and for two other accused persons. On the opening day of the trial, one of the attorneys indicated that they had subsequently divided the case and that he and junior counsel would represent Mr. Morrison and the third attorney would represent Mr. Graham; he further indicated that the attorney appearing for Mr. Graham could not be present that day and, upon request of the judge, agreed to hold for him. The next morning, before cross-examination of the first witness, it was announced that the first attorney would be representing Mr. Morrison and the second Mr. Graham. The third attorney apparently withdrew from the defence.
2.5 On appeal, the authors were represented by a different lawyer. Before the Court of Appeal, counsel stated that, after having carefully examined the evidence and the judge's summing-up, he could find no grounds of appeal to argue on his clients' behalf. After reviewing the case, the Court of Appeal agreed with counsel and dismissed the application for leave to appeal. It appears from the written judgement that the appeal was scheduled to be heard by the Court of Appeal on 26 May 1987 but that an application had been made to "take the matter out of the list for two weeks to obtain the services of senior counsel". It further appears that "five months later the situation had not altered" and that then the above-mentioned counsel had been assigned.
2.6 A London law firm represented the authors pro bono before the Judicial Committee of the Privy Council. The principal grounds for the authors' petitions for special leave to appeal to the Judicial Committee of the Privy Council were that the trial judge had misdirected the jury on the issue of identification and/or recognition evidence and on the issue of common design.
The complaint
3.1 In respect of article 14, paragraph 1, of the Covenant, the authors claim that the judge failed properly to direct the jury on issues relating to "common design". They further contend that the judge failed to warn the jury of the risk of errors in identification or recognition evidence.
3.2 As to the preparation and conduct of the defence at the trial, Mr. Morrison complained that the attorneys had never discussed the case with him or taken instructions prior to the trial. It is stated that neither Mr. Morrison nor Mr. Graham were consulted about the change of counsel which took place on the second day of the trial. Mr. Graham complains that he had only minimal opportunity to give subsequent instructions and that, in the circumstances, the conduct of his defence was deficient.
3.3 In respect of their appeal, both authors complain that their request to be represented by senior counsel was ignored and that counsel assigned to them for the purpose of the appeal was not of their own choosing. They argue that in an appeal against conviction and sentence involving the death penalty, the right to a fair trial includes the right to representation either by counsel of one's own choice or by counsel of sufficient seniority and experience to present such an appeal competently and carefully. The authors further claim that they were not informed that counsel had been assigned to them, that they never saw or spoke to him and that counsel abandoned the appeal without their consent. In this context, the authors add that they were denied the opportunity to defend themselves in person, as their request to be present at the hearing of the appeal was either ignored or refused. It is submitted that, because the authors were denied the right to representation of their choosing or to be present at the appeal, and counsel abandoned the appeal, they were also deprived of their right to an effective review of their conviction and sentence by the Court of Appeal.
3.4 Finally, the authors claim that the time spent on death row, together with the anxiety and mental stress suffered and being kept in the dark as to whether or not the authorities would continue their policy of suspending executions, amount to cruel, inhuman and degrading treatment in violation of article 7 of the Covenant. Moreover, the resumption of executions after such a period of suspension of executions unrelated to justifiable legal arguments is said to constitute a violation of article 6 of the Covenant.
The State party's submission on admissibility
4. In its submission of 11 February 1993, the State party argues that the communication is inadmissible on grounds of non-exhaustion of domestic remedies. It concedes that the authors have exhausted their criminal appeal possibilities but argues that they have failed to pursue the remedy provided for under the Jamaican Constitution. In this context, the State party submits that article 14, paragraphs 1, 3 (d) and 5, of the Covenant are coterminous with sections 20 and 110 of the Constitution. Section 25 of the Constitution provides that any person who alleges that any of his basic rights have been violated may apply to the Supreme Court for redress.
The Committee's admissibility decision
5.1 The Committee considered the admissibility of the communication at its fifty-second session.
5.2 The Committee noted the State party's contention that the communication was inadmissible on the ground of failure to exhaust domestic remedies, and it recalled its constant jurisprudence that for purposes of article 5, paragraph 2 (b), of the Optional Protocol, domestic remedies must be both effective and available. The Committee noted that the Supreme Court of Jamaica had, in recent cases, allowed applications for constitutional redress in respect of breaches of fundamental rights, after the criminal appeals in those cases had been dismissed. However, the Committee also recalled that the State party had indicated on several occasions that no legal aid was made available for such purposes. The Committee considered that, in the absence of legal aid, a constitutional motion did not, in the circumstances of the case, constitute an available remedy which must be exhausted for purposes of the Optional Protocol. In this respect, therefore, the Committee found that it was not precluded by article 5, paragraph 2 (b), from considering the communication.
5.3 As to the authors' claims under articles 6 and 7 of the Covenant, the Committee, having noted that there were no further remedies available to the authors, considered that those allegations should be examined on the merits.
5.4 As to the authors' claim of unfair trial because of the trial judge's alleged failure properly to direct the jury on the issues of common design and identification evidence, the Committee reaffirmed that it was in principle for the appellate courts of States parties to the Covenant, and not for the Committee, to evaluate the facts and evidence in a particular case. Similarly, it was not for the Committee to review specific instructions to the jury by the judge unless it could be ascertained that those instructions were clearly arbitrary or amounted to a denial of justice, or that the judge had manifestly violated his obligation of impartiality. The material before the Committee did not show that the judge's instructions to the jury or the conduct of the trial suffered from such defects. That part of the communication was therefore inadmissible under article 3 of the Optional Protocol.
5.5 The Committee considered that the authors had failed to substantiate, for purposes of admissibility, their claim that the preparation and conduct of their defence at trial were inadequate. The information before the Committee revealed that Mr. Morrison was represented by the same attorney who had represented both him and Mr. Graham at the preliminary hearing, that Mr. Graham had raised no objections when it was decided that junior counsel would represent him and that no complaint was made to the trial judge by or on behalf of the authors that time or facilities to prepare their defence had been inadequate. Furthermore, the authors failed to indicate how their attorneys would have acted against their instructions, and there was no indication that Mr. Morrison's attorney or junior counsel representing Mr. Graham had acted negligently in the discharge of their professional duties. Accordingly, that part of the communication was inadmissible under article 2 of the Optional Protocol.
5.6 As to the authors' allegations about the preparation and conduct of their defence on appeal, and as to whether, in the circumstances, the authors should have been allowed to attend the hearing of their application for leave to appeal, the Committee considered that that might raise issues under article 14, paragraphs 1, 3 (b) and (d) and 5, of the Covenant; accordingly, those allegations should be examined on their merits.
5.7 Finally, the Committee noted from the information received from a third party that Mr. Morrison had died on 31 October 1993, almost one year before the adoption of the decision on admissibility, and it requested the State party to confirm that information and to clarify the circumstances surrounding Mr. Morrison's death.
6. Accordingly, the Human Rights Committee decided that the communication was admissible insofar as it might raise issues under articles 6, 7 and, in respect of the conduct of the authors' appeal, article 14, paragraphs 1, 3 (b) and (d) and 5, of the Covenant. Under rule 86 of the Committee's rules of procedure, the State party was requested not to carry out the death sentence against Mr. Graham while the communication was under consideration by the Committee.
The State party's submission on the merits and counsel's comments
7.1 The State party, by submission of 27 July 1995, denies that there has been a violation of article 7 of the Covenant in the authors' case. In this connection, it refers to the Committee's decision in the case of Pratt and Morgan v. Jamaica, in which the Committee held that "prolonged judicial proceedings do not per se constitute cruel, inhuman or degrading treatment".a In this context, the State party observes that it is not enough to assert that a long stay on death row constitutes cruel and inhuman treatment: the circumstances of a particular case must show specific factors which render the treatment cruel or inhuman.
7.2 The State party submits that the authors have failed to provide grounds for their allegation that article 6 of the Covenant has been violated in their case.
7.3 As regards the authors' representation on appeal, the State party states that the records of the Court of Appeal show that counsel who represented Mr. Morrison at trial confirmed, by letter of 30 April 1986, that he would represent the authors at the hearing of their appeal. By further letter of 27 May 1987, counsel requested that his name be removed from the list, as he had been informed that the authors were in the process of instructing senior counsel. By letter of 25 June 1987, the Court of Appeal informed Mr. Morrison accordingly and requested him to advise the Court of the name of counsel retained. No reply was received from the author, and a second similar letter was sent to the authors on 31 August 1987, informing them that their case would be heard during the Michaelmas term, to begin on 21 September 1987, and requesting them to inform the Court of the name of their counsel or to indicate if they were unable to retain counsel. Again, no reply was received, and in September 1987 the Court issued a legal aid certificate and assigned an experienced counsel to represent the authors. The State party concludes from the above that the authors had ample opportunity to retain counsel of their choice and that the appointment of legal aid counsel in the specific circumstances did not constitute a breach of the Covenant.
7.4 As regards the allegations of the conduct of the appeal, the State party argues that once competent counsel has been appointed, the manner in which the case is conducted is not the responsibility of the State.
7.5 Finally, the State party states that it will provide the Committee with information on the circumstances surrounding the death of Mr. Morrison as soon as it is available.
7.6 In January 1996, the State party informed the Committee that Mr. Graham's sentence had been commuted to life imprisonment on 29 May 1995.
8.1 In his comments on the State party's submission, counsel refers to the Privy Council's decision in Pratt and Morgan v. Attorney-General of Jamaica of 2 November 1993 and invites the Committee to adopt the Privy Council's opinion that "in any case in which an execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute inhuman or degrading treatment or punishment".
8.2 As regards the representation on appeal, counsel indicates that he is seeking further instructions from the authors and requests copies of the correspondence referred to by the State party. Counsel reiterates that the authors' representative on appeal was appointed without the authors being informed and maintains that that amounts to a violation of article 14 of the Covenant.
Issues and proceedings before the Committee
9. The Committee regrets that the State party has failed to provide information on the circumstances of Mr. Morrison's death, as requested by the Committee in its decision on admissibility.
10.1 The Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol.
10.2 In view of the commutation of Mr. Graham's death sentence, the Committee need not address counsel's argument that the execution of the death sentence would constitute a violation of article 6 of the Covenant.
10.3 Counsel for the authors has claimed that the time spent by the authors on death row amounts to cruel, inhuman and degrading treatment, in violation of article 7 of the Covenant. The Committee refers to its prior jurisprudence,a and in particular to its views in respect of communication No. 588/1994 (Johnson v. Jamaica), adopted on 22 March 1996 (see section W below), and states that it remains the jurisprudence of the Committee that detention on death row for a specific period of time does not amount to a violation of article 7 of the Covenant in the absence of some further compelling circumstances. In the instant case, neither the author nor his counsel have pointed to compelling circumstances, over and above the length of the detention on death row, that would render the detention cruel, inhuman or degrading treatment or punishment, in violation of article 7 of the Covenant. The Committee therefore concludes that there has been no violation of article 7.
10.4 As regards the authors' allegations concerning the preparation and conduct of the appeal, the Committee notes that it is undisputed that the hearing of the appeal was postponed on several occasions in order to allow the authors to retain counsel. Eventually, in the absence of further information from the authors as to who would represent them, the Court of Appeal decided to appoint a legal aid counsel. The authors have argued that they were not informed by the Court that a legal aid counsel had been appointed for them and that appointed counsel factually withdrew the appeal without having consulted or informed them. The Committee notes that it appears from the written judgement of the Court of Appeal that the Court did review the case proprio motu.
10.5 The Committee recalls its jurisprudence (see, inter alia, section F, para. 10.5, above) that under article 14, paragraph 3 (d), of the Covenant, the court should ensure that the conduct of a case by the lawyer is not incompatible with the interests of justice. While it is not for the Committee to question counsel's professional judgement, the Committee considers that, particularly in a capital case, when counsel for the accused concedes that there is no merit in the appeal, the Court should ascertain whether counsel has consulted with the accused and informed him accordingly. If not, the Court must ensure that the accused is so informed and given an opportunity to engage other counsel. The Committee is of the opinion that in the instant case, Mr. Graham and Mr. Morrison should have been informed that their legal aid counsel was not going to argue any grounds in support of the appeal so that they could have considered any remaining options open to them. In the circumstances, the Committee finds that Mr. Graham and Mr. Morrison were not effectively represented on appeal, in violation of article 14, paragraphs 3 (b) and (d).
10.6 The Committee is of the opinion that the imposition of a sentence of death upon conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is possible, a violation of article 6 of the Covenant. As the Committee noted in its general comment 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 [of conviction and sentence] by a higher tribunal".b In the present case, since the final sentence of death was passed without adequate representation of the authors on appeal, there has consequently also been a violation of article 6 of the Covenant.
11. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 14, paragraphs 3 (b) and (d), and consequently of article 6, paragraph 2, of the International Covenant on Civil and Political Rights.
12. As the authors' rights were violated, they are entitled to a remedy. However, the State party has commuted Mr. Graham's death sentence to life imprisonment. The Committee considers that commutation of the death sentence constitutes an adequate remedy, pursuant to article 2, paragraph 3 (a), of the Covenant, for the violation of article 6. As regards the violation of article 14, paragraph 3 (b) and (d), the State party should provide an appropriate remedy. The Committee stresses the duty of the State party to ensure that similar violations do not occur in the future.
[Adopted in English, French and Spanish, the English text being the original version.]
Notes
a See Official Records of the General Assembly, Forty-fourth Session, Supplement No. 40 (A/44/40), annex X.F, communications Nos. 210/1986 and 225/1987, views adopted on 6 April 1989, para. 13.6.
b Ibid., Thirty-seventh Session, Supplement No. 40 (A/37/40), annex V, general comment No. 6 (16), para. 7.
H. Communication No. 480/1991, José Luis García Fuenzalida
v. Ecuador (views adopted on 12 July 1996, fifty-seventh
session)
Submitted by: José Luis García Fuenzalida [represented by counsel]
Victim: The author
State party: Ecuador
Date of communication: 4 November 1991 [date of initial letter]
Date of decision on admissibility: 15 March 1995
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 12 July 1996,
Having concluded its consideration of communication No. 480/1991, submitted to the Human Rights Committee by Mr. José Luis García Fuenzalida 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 José Luis García Fuenzalida, a Chilean citizen, currently residing in Quito. At the time of submission of the communication, he was imprisoned at the Cárcel No. 2 in Quito. He claims to be a victim of violations by Ecuador of articles 3, 7, 9 and 14 of the International Covenant on Civil and Political Rights. He is represented by the Ecumenical Human Rights Commission, a non-governmental organization in Ecuador.
The facts as submitted by the author
2.1 The author is a hairdresser by profession. He was detained on 5 July 1989 and charged two days later with the rape, on 5 May 1989, of one D. K., a United States Peace Corps volunteer. He claims to be innocent and argues that he has never had sexual relations with any woman. The author was tried by the Tribunal Cuarto de Pichincha. On 11 April 1991, he was found guilty as charged and sentenced, on 30 April 1991, to eight years' imprisonment. On 2 May 1991, the author appealed to the Superior Court, demanding the nullity and cassation of the judgement. The request for nullity was rejected by the court and the appeal on cassation was not resolved within the period of 30 days established by law. After waiting for two years and six months for a decision by the Court of Cassation, the author withdrew his appeal on cassation in exchange for his release. He was released on parole in October 1994.
2.2 With regard to his arrest, the author states that on 5 July 1989, at approximately 7 p.m., he was detained by police officers, thrown to the floor of a vehicle and blindfolded. From the submission it is not clear whether an arrest warrant had been issued. The author apparently did not know the reason for his arrest and initially supposed it was in connection with drugs. It was not until two days later that he learned about the alleged rape. He was interrogated regarding his whereabouts on the day of the rape. He claims to have been subjected to serious ill-treatment, including being left shackled to a bed overnight. It is also alleged that, in contravention of Ecuadorian law and practice, samples of his blood and hair were taken.
2.3 It is alleged that during the evening of 6 July 1989, the author was blindfolded and that a brine solution was poured into his eyes and nostrils. The author alleges that at some point of the interrogation the blindfold fell from his eyes and he was able to identify an officer who, the author claims, had a grudge against him from a prior detention on suspicion of murdering a homosexual friend.
2.4 That same evening, he was taken to the Criminal Investigation Department of Pichincha (SIC-P), where he was subjected to death threats until he consented to sign an incriminatory statement. However, it is clear from the judgement that the author, during his trial, denied both the charges and the voluntariness of the statement. The judgement reflects that the author made before the judge a long and detailed statement of the facts concerning his detention and confession under duress.
2.5 The author claims that he learned of the facts of the rape only when charges were read to him on 7 July 1989, just before he was put on an identification parade in which the victim identified him. The author further alleges that, before he was put on the identification parade, he was taken to his house to shower, shave and dress, as instructed by the police. The author also claims that the police took several pieces of underwear from his house, which were then used as evidence against him, despite the testimony by a witness, MC. M. P., that they belonged to her.
2.6 Finally, the author alleges that on Saturday, 8 July 1989, he was shot in the leg by a police officer in what the police claimed was an attempt to escape and the author claims was a set-up. He was hospitalized with leg injuries and claims that the psychological torture continued while he was in the hospital. An affidavit given during the trial by a member of the Ecuadorian Human Rights Commission who visited the author in the hospital states: "I was able to see that there were two wounds on one of his legs caused by a bullet. I also saw several cigarette burns on his chest and hand." This same person further states in the affidavit: "I talked to a patient who was in the bed next to Mr. García's and asked him whether it was true that a police officer had been harassing Mr. García. He replied that he had indeed heard that person (the police officer) threaten Mr. García."
2.7 The case for the prosecution was that, during the night of 5 May 1989, D. K. was abducted by an assailant and forced into a car. The victim was kept on the floor of the car and repeatedly sexually assaulted. Finally, the victim was thrown out of the car and left on the roadside. The victim reported the incident to the Consulate of the United States of America, which reported it to the police. During the trial the police claimed that they had found the victim's underwear in the author's house.
2.8 As to the exhaustion of domestic remedies in respect of the physical abuse to which the author was allegedly subjected, it is stated that a lawyer filed a complaint against the police officers on the author's behalf. There is no further information concerning the status of the investigation of the complaint.
The complaint
3.1 The author claims to be the victim of a violation of article 3 in conjunction with article 26 of the Covenant, owing to the difficulties he encountered in retaining a lawyer, allegedly because of his homosexuality.
3.2 The author also claims to have suffered repeated violations of article 7, because he was subjected to torture and ill-treatment following his arrest. This was corroborated during the trial by a member of the Ecuadorian Ecumenical Human Rights Commission.
3.3 The author further claims a violation of article 9, because he was subjected to arbitrary arrest and detention, since he claims that he was not involved in the rape.
3.4 The author further claims that his trial was unfair and in violation of article 14 of the Covenant. In this respect, counsel contends that the accused was convicted notwithstanding the contradictory evidence contained in the statement given by the victim herself, who described her assailant as being very tall and having a pock-marked face. The author, whom the victim identified, is short, measuring only 1.50 metres, and has no pockmarks on his face.
3.5 The author also claims that, in view of the submission by the victim of a laboratory report on samples of blood and semen taken from her and samples of blood and hair taken from him against his will and showing the existence of an enzyme which the author does not have in his blood, he requested the court to order an examination of his own blood and semen, a request which the court denied.
3.6 Moreover, the author complains about the delays in the judicial proceedings, in particular the fact that his appeal on cassation had not been dealt with in the period provided for by law and that, after more than two and a half years of waiting for the decision of the Court of Cassation, he finally had to abandon that recourse in order to obtain his release on parole.
The Committee's decision on admissibility
4. On 26 August 1992, the communication was transmitted to the State party, which was requested to submit to the Committee information and observations in respect of the question of admissibility of the communication. Despite two reminders sent on 10 May 1993 and 9 December 1994, no submission had been received from the State party.
5.1 Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.
5.2 The Committee ascertained, as required under article 5, paragraph 2 (a), of the Optional Protocol, that the same matter had not been examined under another procedure of international investigation or settlement.
5.3 The Committee noted with concern the absence of cooperation from the State party, despite the two reminders addressed to it. On the basis of the information before it, the Committee found that it was not precluded from considering the communication under article 5, paragraph 2 (b), of the Optional Protocol.
5.4 The Committee considered that the author had not substantiated, for purposes of admissibility, that he had been unequally treated owing to his homosexuality and that that had been the cause of his difficulty in retaining a lawyer. That part of the communication was therefore declared inadmissible under article 2 of the Optional Protocol.
5.5 With respect to the author's complaint that he had been subjected to torture and ill-treatment, in violation of article 7 of the Covenant, as attested to by a member of the Ecuadorian Ecumenical Human Rights Commission during the trial, the Committee found that the facts as submitted by the author, which had not been contested by the State party, might raise issues under both articles 7 and 10 of the Covenant. In the absence of any cooperation from the State party, the Committee found that the author's claims were substantiated, for the purposes of admissibility.
5.6 With regard to the allegations that the author had been subjected to arbitrary detention, in violation of article 9 of the Covenant, the Committee found that the facts as submitted were substantiated, for the purposes of admissibility, and should accordingly be considered on their merits, especially with regard to the warrant of arrest and the moment at which the author was informed of the reasons for his arrest.
5.7 In respect of the author's allegations that the evidence in his case was not properly evaluated by the Court, the Committee referred to its prior jurisprudence and reiterated that it was generally for the appellate courts of States parties to the Covenant to evaluate facts and evidence in a particular case. Accordingly, that part of the communication was declared inadmissible as being incompatible with the provisions of the Covenant, pursuant to article 3 of the Optional Protocol.
5.8 The author also submitted information concerning the procedures at the trial and the delays of over two and a half years encountered in the appeal on cassation, which, the Committee found, raised issues under article 14 of the Covenant to be examined on the merits.
6. On 15 March 1995, the Human Rights Committee decided that the communication was admissible and that the State party and the author should be requested to submit copies of the arrest warrant and of any relevant resolutions and judgements in the case, as well as medical reports and information about investigations into the alleged physical abuse of Mr. García.
The State party's observations on the merits and comments by the author
7.1 The State party, on 18 October 1995, submitted to the Committee some documents relating to the case, without submitting a reply to the author's communication.
7.2 From the police report, it appears that the police give a version of the facts concerning torture and ill-treatment which differs from the author's version. The State party explains that it was unable to question the accused police officer because he is no longer in the police force and it has been impossible to locate him.
7.3 The judgement against the author reveals that the judge believed the police version and minimized the importance of the statement made by a nun who visited the author in the hospital, the content of which is referred to in paragraph 2.6 above.
7.4 With regard to Mr. García's leg wound, the State party insists that the shot was fired in connection with an escape attempt:
"With regard to the wound suffered by the detainee, it is noted that during an investigation carried out on Saturday, 8 July, in Bosmediano street, where the other person involved allegedly lived, he took advantage of the inattention of the officers guarding him to make a sudden and precipitate escape; the persons responsible for the detainee shouted after him and then fired shots, one of which hit him, causing a fracture of the left femur, as a result of which he was taken to the Eugenio Espejo hospital for medical treatment; the wound was never inflicted in the offices of the former criminal investigation service of Pichincha; it is also noted that there is a statement signed in the presence of Dr. Hilda María Argüello L., second prosecutor in the Pichincha criminal court, on this incident."
The documents submitted by the State party do not indicate that the court conducted any investigation whatsoever into the circumstances in which Mr. García was wounded, such as, for example, questioning the witnesses who, according to the police, saw the author attempt to escape.
7.5 The State party also submitted the text of report No. 4271-SIC-P of 8 July 1989, drawn up by Claudio Guerra; the report shows that Mr. García was arrested on Thursday, 6 July 1989, at 10 a.m. by police officers on the basis of previous investigations, and that the police confiscated a woman's undergarment, identified as belonging to Miss D. K., in Mr. García's home. A copy of a statement by Mr. García, dated 7 July 1989, admitting to having committed the rape and to having taken Miss K's undergarment, and of another statement dated 9 July 1989 admitting his attempt to escape, have been submitted, both statements having been made before Dr. Hilda Argüello, second prosecutor of the Pichincha criminal court. A copy of a note dated 8 July 1989 by officer 06 is also attached, describing the escape attempt and indicating that other witnesses can confirm the facts, in particular that shots had first been fired in the air before the fleeing defendant was wounded. A copy of the statement by Miss D. K., dated 7 July 1989, has been submitted regarding the identification parade organized on 6 July 1989 in which she immediately identified Mr. García among a group of 10 men, and was absolutely sure that the man in front of her was indeed the man who had raped her. A medical report on Mr. García's hospitalization is also included. Another attached police report states that, prior to the investigation, some photographs were sent to Miss K., but the photograph of Mr. García was first sent by facsimile, and Miss K. stated in a telephone conversation from the United States that: "This looks the most like him of any of the photographs I have seen."
7.6 It is noted that Mr. García was released on parole on 5 October 1994 and was required to report to the prison centre every week. Mr. García has not done so, and it has not been possible to locate him, since he is not residing at his last address.
7.7 The State party submitted documents indicating that Mr. García was arrested on 6 July 1989, to be investigated for the crime of rape committed against Miss D. K., a United States national, on 5 May 1989. The register of aliens shows that Mr. García was married to an Ecuadorian woman. The State party has not sent the texts of the arrest warrant for Mr. García or of the judgements.
8.1 In a letter of 29 December 1995, the Ecumenical Human Rights Commission, which is representing Mr. García, refers to a statement made by the author in the presence of the judge in 1989 in which he maintains that he is innocent, denies having tried to escape and accuses officer 06 of having fired at him in an interrogation room, after first placing a handkerchief on his leg. He maintains that his confession was obtained by means of torture. This statement is found in the record of proceedings.
8.2 It is argued that if the police force itself is responsible for carrying out an investigation of a complaint like Mr. García's, the notorious esprit de corps of the force gives rise to lies, and the police are always vindicated in the end so as to avoid penalties.
Examination of the merits of the case
9.1 The Committee has considered the communication in the light of all the information, materials and legal documents submitted by the parties. The conclusions it has reached are based on the following considerations.
9.2 With regard to the arrest and imprisonment of Mr. García, the Committee has considered the documents submitted by the State party, which do not show that the arrest was illegal or arbitrary or that Mr. García had not been informed of the reasons for his arrest. Consequently, the Committee cannot make a determination on the alleged violation of article 9 of the Covenant.
9.3 With regard to the allegations of ill-treatment perpetrated by a police officer, the Committee observes that they were submitted by the author to the Cuarto de Pichincha criminal court, which rejected them, as is shown by the judgement of 30 April 1991. In principle, it is not for the Committee to question the evaluation of the evidence made by national courts, unless that evaluation was manifestly arbitrary or constituted a denial of justice. The materials made available to the Committee by the author do not demonstrate the existence of such shortcomings in the procedure followed before the courts.
9.4 The file does not, however, reveal any evidence that the incident in which the author suffered a bullet wound was investigated by the court. The accompanying medical report neither states nor suggests how the wound might have occurred. Given the information submitted by the author and the lack of investigation of the serious incident in which the author was wounded, the Committee concludes that there has been a violation of articles 7 and 10 of the Covenant.
9.5 With regard to the trial in the court of first instance, the Committee finds it regrettable that the State party has not submitted detailed observations about the author's allegations that the trial was not impartial. The Committee has considered the legal decisions and the text of the judgement dated 30 April 1991, especially the court's refusal to order expert testimony of crucial importance to the case, and concludes that that refusal constitutes a violation of article 14, paragraphs 3 (e) and 5, of the Covenant.
9.6 With regard to the information submitted by the author concerning delays in the judicial proceedings, in particular the fact that his appeal was not dealt with in the period provided for by law, and that, after waiting more than two and a half years for a decision on his appeal, he had to abandon that recourse in order to obtain conditional release, the Committee notes that the State party has not offered any explanation or sent copies of the relevant decisions. Referring to its prior jurisprudence, the Committee reiterates that, in accordance with article 14, paragraph 3 (c), of the Covenant, the State party has to ensure that there is no undue delay in the proceedings. The State party has not submitted any information that would justify the delays. The Committee concludes that there has been a violation of article 14, paragraph 3 (c), as well as of article 14, paragraph 5, since the author was obliged to abandon his appeal in exchange for conditional release.
10. The Human Rights Committee, acting in accordance with the provisions of article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, considers that the facts before it reveal violations by Ecuador of articles 7, 10, paragraph 1, and 14, paragraphs 3 (c) and (e) and 5, of the Covenant.
11. In accordance with the provisions of article 2, paragraph 3 (a), of the Covenant, the State party has an obligation to provide an effective remedy to the author. In the Committee's view, that entails compensation, and the State party is under an obligation to ensure that there will be no such violations in future.
12. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within a period of 90 days, information on the measures taken to give effect to its views.
[Adopted in English, French and Spanish, Spanish being the original version.]
I. Communication No. 505/1992, Kéténguéré Ackla v. Togo
(views adopted on 25 March 1996, fifty-sixth session)
Submitted by: Kéténguéré Ackla
Victim: The author
State party: Togo
Date of communication: 11 October 1991 (initial submission)
Date of decision on admissibility: 30 June 1994
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 25 March 1996,
Having concluded its consideration of communication No. 505/1992, submitted to the Human Rights Committee by Mr. Kéténguéré Ackla 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 by the State party,
Adopts its views under article 5, paragraph 4, of the Optional Protocol.
1. The author of the communication is Kéténguéré Ackla, a Togolese citizen currently residing in Lomé. He claims to be a victim of violations by Togo of articles 1, paragraphs 1 and 2; 2, paragraph 3 (a), (b) and (c); 7; 9, paragraphs 1, 2, 3 and 5; 10, paragraph 1; 12, paragraph 4; and 17, paragraphs 1 and 2, of the International Covenant on Civil and Political Rights. The Optional Protocol entered into force for Togo on 30 June 1988.
The facts as submitted by the author
2.1 The author, formerly a police superintendent, was dismissed from his post by decision of 13 May 1986; according to him, the decision was unjustifiable and arbitrary, and based on fabricated charges of grave professional misbehaviour (faute grave de service). Mr. Ackla himself requested the establishment of a disciplinary committee to investigate his case, but that request was not followed up on.
2.2 On 29 May 1987, the author was arrested at his residence, upon order of the State party's President, Gnassingbé Eyadéma. He was detained for eight days, apparently without charges. On the third day of his detention, he was able to contact the President. According to the author, he was detained because the President held personal grudges against him. The author contends that during his detention, his house and other properties were seized and turned over to his former wife.
2.3 Prior to his release on 6 June 1987, Mr. Ackla was notified of the President's decision to deny him the right to enter the district of La Kozah (interdiction de séjour) and his native town of Kara, situated in that district. On 24 July 1987, the police once more tried to arrest him when he returned to Kara to retrieve some personal effects. He managed to escape and subsequently requested his sister to retrieve his belongings; she was unable to do so. The author adds that he was informed in June 1990 that the police had once again visited his home in his native town and ransacked it.
2.4 As to the requirement of exhaustion of domestic remedies, the author notes that he sent over 40 communications to the Togolese authorities, requesting his reinstatement in the police, a lifting of the interdiction to enter the La Kozah district and his native village, and the restitution of his estate. He did not receive a reply. He also unsuccessfully discussed his case with two ministers. As to steps taken to exhaust available remedies before the local courts, Mr. Ackla states that he sent a petition to an unspecified court in charge of labour disputes and that an examining magistrate informed him that he was not competent to investigate the validity of an order of President Eyadéma. The magistrate allegedly told him that only the President could reinstate him in the police force. After submitting his complaint to the Human Rights Committee, the author appealed to the President of the Court of Appeal, who is said to have replied that the administrative tribunal did not function in Togo, owing to the lack of qualified judges.
2.5 The author adds that he sought help from various local organizations, including the Togolese human rights commission, to no avail. He concludes that no effective remedies exist and that he cannot defend himself against a biased and discriminatory judicial system.
The complaint
3.1 The author seeks the restitution of his property, in particular of his home, as well as compensation for the lost revenue derived from the rental of his home, totalling 1,078,000 CFA francs by the beginning of 1992. He challenges the decision to deny him access to the La Kozah district and his native village, which remains in force, and the refusal of the Chief of National Security, dating from 1991, to reinstate him in his functions.
3.2 Mr. Ackla further complains about arbitrary and unlawful interferences with his privacy, family home and correspondence and about unlawful attacks on his honour and reputation. Furthermore, the seizure of his home and his unemployment have prevented him from meeting both his own medical expenses and the fees for the education of his children. He adds that he is now unable to pay for appropriate legal representation.
The State party's submission on admissibility and the author's comments thereon
4. In its submission under rule 91, dated 20 October 1992, the State party notes that the author has been reinstated in the police force, at a higher grade. As a result, the State party submits, the author's complaint to the Human Rights Committee should be considered moot.
5.1 In his comments, the author confirms that he was reinstated in the police force on 26 May 1992 and that, while there were initial questions about his grade, he was later reclassified at a higher level. On the private level, however, there have been no changes: neither his property nor the sums derived from its rental (1,228,000 CFA francs as of mid-January 1993) have been restituted, and the order prohibiting him from visiting the La Kozah district and his native village remains in force.
5.2 In the latter context, the author notes that, on 9 January 1993, he visited his house in Kara at his own risk, having decided to sell it to a local merchant. Upon his arrival, he was threatened by his ex-wife and her sons, who sought to have him arrested upon orders of the mayor of Kara and tried to discourage the potential buyer of the house. As a result, Mr. Ackla was unable to sell the house.
The Committee's admissibility decision
6.1 The Committee considered the admissibility of the communication at its fifty-first session. The Committee noted the State party's contention that as Mr. Ackla was reintegrated in the police, his complaint should be considered moot, but considered that the author's claims relating to arbitrary arrest and detention, to expropriation of his house and to the restrictions on his freedom of movement were distinct from his claims related to his dismissal, in 1986, from the civil service, and thus had not become moot.
6.2 The Committee noted that the author's claims under articles 7, 9 and 10, paragraph 1, of the Covenant related to events that occurred prior to 30 June 1988, the date of entry into force of the Optional Protocol for the State party. In this respect, therefore, the Committee decided that the communication was inadmissible ratione temporis.
6.3 Concerning the author's claim relating to the failure of the authorities to restitute his property and the rents derived from unlawful rental thereof, the Committee noted that, irrespective of the fact that the confiscation took place prior to the date of entry into force of the Optional Protocol for Togo, the right to property was not protected by the Covenant. Accordingly, the Committee decided that this claim was inadmissible ratione materiae, under article 3 of the Optional Protocol.
6.4 The Committee considered that the author had failed to substantiate, for purposes of admissibility, his claims under articles 1 and 2 of the Covenant and concluded that the facts as submitted did not raise issues under those provisions.
6.5 As to the author's claim under article 17, the Committee noted that on the basis of the information given by the author, which had remained uncontested, interferences with his home, his privacy and his honour and reputation continued after 30 June 1988. However, there was nothing to indicate that the author had sought to have that issue adjudicated before the domestic tribunals and, in particular, before the civil courts; his generalized claim that he was defenceless against a biased and partial judicial system had not been further corroborated. The Committee considered that mere doubts about the effectiveness of civil remedies did not absolve the author from attempting to exhaust them. In this respect, the Committee concluded that the author had not satisfied the requirements of article 5, paragraph 2 (b), of the Optional Protocol.
6.6 Finally, as to the author's claim under article 12 of the Covenant, the Committee noted that the State party had not contested that the prohibition, pronounced against the author, to enter the La Kozah district and to visit his native village was still in force. The Committee noted that the author had sought to bring the matter to the attention of the judicial authorities, who had replied that administrative tribunals were inoperative in Togo. In those circumstances, the Committee concluded that no effective remedy was available to Mr. Ackla.
7. Accordingly, on 30 June 1994 the Human Rights Committee decided that the communication was admissible insofar as it might raise an issue under article 12 of the Covenant.
Issues and proceedings before the Committee
8. The deadline for the submission of the State party's observations under article 4, paragraph 2, of the Optional Protocol expired on 10 February 1995. No submission has been received from the State party, in spite of two reminders addressed to it on 14 July and 31 August 1995. The Committee regrets the absence of cooperation on the part of the State party as far as the merits of the author's claims are concerned. It is implicit in article 4, paragraph 2, of the Optional Protocol that a State party must furnish the Committee, in good faith and within the imparted deadlines, with all the information at its disposal. In the absence of information from the State party, due weight must be given to the author's allegations, to the extent that they have been substantiated.
9. Accordingly, the Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol.
10. The Committee notes that the only admissible issue, which has to be examined on the merits, is the author's uncontested allegation that he is under prohibition of entering the district of La Kozah and his native village, which forms part of that district. Article 12 of the Covenant establishes the right to liberty of movement and freedom to choose residence for everyone lawfully within the territory of the State. In the absence of any explanation from the State party justifying the restrictions to which the author has been subjected, pursuant to paragraph 3 of article 12, the Committee is of the opinion that the restriction of the author's freedom of movement and residence is in violation of article 12, paragraph 1, of the Covenant.
11. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 12, paragraph 1, of the International Covenant on Civil and Political Rights.
12. Pursuant to article 2, paragraph 3 (a), of the Covenant, Mr. Ackla is entitled to an effective remedy. In the Committee's opinion, that remedy should entail measures to immediately restore Mr. Ackla's freedom of movement and residence, as well as appropriate compensation. The State party is under an obligation to ensure that similar violations do not occur in the future.
13. Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State Party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's views.
[Adopted in English, French and Spanish, the English text being the original version.]
J. Communication No. 512/1992, Daniel Pinto v. Trinidad
and Tobago (views adopted on 16 July 1996, fifty-
seventh session)
Submitted by: Daniel Pinto
Victim: The author
State party: Trinidad and Tobago
Date of communication: 24 June 1992 (initial submission)
Date of decision on admissibility: 25 October 1994
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 16 July 1996,
Having concluded its consideration of communication No. 512/1992, submitted to the Human Rights Committee by Mr. Daniel Pinto 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 by the State party,
Adopts its views under article 5, paragraph 4, of the Optional Protocol.
1. The author of the communication is Daniel Pinto, a Trinidadian citizen currently serving a sentence of life imprisonment at the Carrera Convict Prison in Trinidad and Tobago. A death sentence imposed on him in June 1985 was commuted to life imprisonment by the President of Trinidad and Tobago in November 1992. In respect of an earlier case submitted by the author to the Committee, the Committee had found, in its views,a that the author had been sentenced to death without enjoying the right to a fair trial, and it had expressed the view that he was entitled to a remedy entailing his release. In the present communication, the author asserts that the State party has failed to implement the Committee's views and that he is the victim of new violations of his human rights by Trinidad and Tobago.
The facts as submitted by the author
2.1 In his submission of 24 June 1992, the author complains about the prison conditions and the treatment he is subjected to in prison. He states that, in spite of repeated recommendations of the prison doctor during the past four years, the prison authorities have failed to take him to hospital, in spite of numerous appointments scheduled at long intervals, which apparently were all cancelled. As a result, the author contends, he is gradually becoming blind.
2.2 Mr. Pinto further claims that for over 8 years out of 10 years in prison, he has been prevented by the prison authorities from receiving urgently needed dental treatment. That has caused considerable pain and discomfort. In addition, his repeated complaints about nervous disorders have allegedly been ignored.
2.3 In his initial submission, while still on death row, the author complained that he was kept in a prison wing where it was impossible to distinguish between day and night, and that he was being denied the daily hour of recreation and exercise outdoors, to the detriment of his health. Since the commutation of his sentence, he claims, the general conditions of his detention have not improved. Sometime either late in 1992 or early in 1993, he was transferred to an island prison (Carrera Convict Prison), where violations of the prisoners' rights are said to be common and conditions of detention deplorable. In particular, the author claims that he is being "victimized and oppressed" because of his human rights complaints to various organizations. He also complains that the prison authorities interfere with his mail and his correspondence, suppressing whatever he would like to send that is critical of their attitude and activities.
The complaint
3. Although the author does not invoke specific provisions of the Covenant, it transpires from the above that he claims to be a victim of a violation of articles 7 and 10 of the Covenant, on account of lack of medical treatment and his conditions of detention, and of article 17, because of the alleged interference with his mail and correspondence.
The State party's information and observations and the author's comments
4.1 In a submission dated 4 March 1993, the State party observes that the author has failed to complain about the above events to the competent national authorities. Thus, he has neither filed a formal complaint with the prison administration nor petitioned the President. The State party adds that it became aware of some of the matters through information received from the author "on request", and that remedial action was "simultaneously initiated".
4.2 The State party observes that the procedure of complaints about conditions of detention or other events in prison is governed by rules 278, 279 and 280 of the prison rules. Thus, rule 278 stipulates that arrangements must be made to record any request from a prisoner to see either the superintendent, deputy superintendent or assistant superintendent. Rule 279 lays down that the aforementioned prison officials must hear applications from prisoners "at a convenient hour on every day, other than Saturday and Sunday". Finally, rule 280 states that "[p]etitions from prisoners shall be submitted in the prescribed form and shall be forwarded, along with the comments of the Superintendent, to the Inspector for his comments, before being forwarded ... to the President". It is submitted that the author did not use any of these channels.
4.3 With regard to the author's eye treatment, the State party provides the following chronology:
The author's initial request for treatment was made to the prison's medical officer on 26 August 1986. He attended the eye clinic of the Port-of-Spain General Hospital thereafter and was given glasses on 18 September 1987, at government expense. A new request for a new pair of glasses was filed on 21 February 1992. Mr. Pinto was referred to the eye clinic and given appointments for 12 March and 21 May 1992; a police escort was unavailable on those dates, and the author could not keep the appointments. He did, however, attend the clinic on 6 August 1992, and another appointment was scheduled for 6 December 1992.
4.4 For dental treatment, the author's initial request was filed in August 1987. A dentist recommended fillings and partial dentures at a cost of $2,045. This was approved on 4 September 1987, but owing to financial constraints, only the fillings were completed on 10 October 1987. On 10 October 1989, the author made another request for dental treatment. Again, a dentist recommended an extraction and two fillings at a cost of $265. Approval for the treatment was subsequently granted, but on 14 August 1992 (!), the author refused the treatment.
4.5 As to the author's nervous disorders, it is submitted that, Mr. Pinto was examined by the prison's medical officer on 11 September 1985 and given continuous medication until 2 February 1986. On an unspecified subsequent date, the author again saw the medical officer about the same problem and was prescribed medication until 4 April 1989.
4.6 The State party notes that the author was given a general medical examination on 13 October 1992 and found mentally and physically fit. The medical certificate notes merely a minor complaint related to mild myopia and to mild lower back pain.
4.7 The State party rejects as "totally false" the author's claim that he is (was) confined to a prison area where it is impossible to distinguish between day and night and that he is being denied daily recreation. It submits that prisoners of the author's status are relocated regularly within the section of the prison they occupy. Lighting and ventilation of the cells are said to be adequate, enabling the occupants to discern day or night. Like other prisoners in the same section, the author benefits from one hour of daily recreation, which is sometimes but rarely cancelled owing to bad weather. The State party contends that the author's claims "are a deliberate attempt to misrepresent to the ... Committee that as a prisoner he is undergoing undue hardships which will ... weigh heavily in the event of a reprieve".
4.8 In a subsequent submission of 19 May 1993, the State party notes that on 12 November 1992, the author's death sentence was commuted to life imprisonment with hard labour by the President of Trinidad and Tobago.
5.1 The author was provided with an opportunity to respond to the State party's submission. As he did not reply within the prescribed deadline, a reminder was sent to him on 19 August 1993. In two letters dated May 1994, the author complains that he had prepared replies to the State party's submission and handed them to the Acting Assistant Superintendent (?) who in turn forwarded them to the Deputy Commissioner for Prisons. At that level, the author submits, his reply was "suppressed".
5.2 In two other letters dated 13 May and 5 September 1994, the author complains that he does not receive the correspondence from the Committee's secretariat in respect of the present communication. It would appear that two secretariat letters dated 3 May and 26 August 1994 did not reach him. Finally, he refers to a five-page document dated 28 May 1994, which he submitted in reply to the State party's submission and which he claims in turn did not reach the Committee.
The Committee's admissibility decision
6.1 The Committee considered the admissibility of the communication during its fifty-second session. It noted the State party's contention that the author had not availed himself of the procedures laid down in rules 278 to 280 of the Trinidadian prison rules. On the other hand, it observed that the author had brought his grievances to the attention of the domestic authorities. Given his situation, first on death row and after 13 November 1992 as a person serving a term of life imprisonment, it could not be held against him if he had not done so in the prescribed form. It would have been incumbent upon the prison authorities to investigate his complaint(s) ex officio and with due diligence and expedition. In this context, the Committee noted that the State party had merely invoked the prison rules and the fact that Mr. Pinto had not availed himself of the procedure spelled out in those rules; it did not state whether or not any follow-up had been given to the author's complaint(s), in whatever form. In the circumstances, the Committee considered that the requirements of article 5, paragraph 2 (b), of the Optional Protocol had been met.
6.2 The Committee concluded that the author had sufficiently substantiated, for purposes of admissibility, his claim of inadequate medical attention and of interference with his correspondence, and that those issues should be considered on their merits.
6.3 On 25 October 1994, therefore, the Committee declared the communication admissible insofar as it appeared to raise issues under articles 7, 10 and 17 of the Covenant.
Absence of State party cooperation on the merits and the author's further comments on the merits
7.1 The deadline for submission of the State party's information and observations under article 4, paragraph 2, of the Optional Protocol expired on 3 May 1995. No additional information has been received from the State party, in spite of two reminders addressed to it on 1 September and 21 November 1995, and despite the seriousness of the allegations contained in paragraphs 7.3 and 7.4 below.
7.2 In several letters between 10 April and 6 September 1995, the author provides information about his efforts to obtain a favourable recommendation from the Advisory Committee on the Power of Pardon of Trinidad. His petition for release had been submitted to that body after the Committee's decision on communication No. 232/1987, referred to in paragraph 1 above. On 23 July 1995, his case was heard by the Advisory Committee but, according to the author, "placed on hold indefinitely". While six other prisoners under sentence of life imprisonment were released upon recommendation of the Advisory Committee, the author's own release was denied.
7.3 The author notes that the Advisory Committee had requested two reports on his case from the prison authorities; those reports allegedly were prepared in January and February 1995. The prison authorities apparently informed him repeatedly that the reports sent to the Advisory Committee were very unfavourable, militating heavily against his release. Mr. Pinto dismisses the reports of the prison welfare officer and the prison administration as malicious and totally unfounded. In this context, he argues that the prison authorities were eager to humiliate him because he had, while on death row, submitted his complaint to the United Nations and to other organizations and prominent politicians. Thus, the prison officers reminded him that the Minister for National Security was the Chairman of the Advisory Committee and the Attorney-General another member and that it was fully within their discretion to reject his request for release. To the author, the authorities manipulated his file: "I've a very good record in prison but they [want to] fight me down because of my human rights struggle."
7.4 The author adds that the welfare officer who prepared the report on him confessed to him on 28 September 1995 that he had drafted the report upon instructions of his superiors and the prison administration, that he had never interviewed anyone on the matter and that the prison authorities were engaged in "corrupt" practices concerning the case, with the sole view of keeping the author in prison forever. The author now seeks the Committee's intervention with the State party's Government.
7.5 In a letter dated 8 November 1995, Mr. Pinto's former counsel before the Committee confirms that the Advisory Committee on the Power of Pardon of Trinidad has indefinitely deferred a decision in the case. Counsel repeats the author's allegations contained in paragraph 7.3 above, i.e. that the Trinidadian authorities have told the author that they would seek to prevent his release because of the action he had taken to complain about his case to the United Nations.
Examination of the merits
8.1 The Human Rights Committee has considered the case in the light of all the information made available to it by the parties to the present case, as it is required to do under article 5, paragraph 1, of the Optional Protocol.
8.2 The Committee notes with utmost concern the non-compliance of the State party with the Committee's recommendation on the views adopted on 20 July 1990 in respect of Mr. Pinto's first communication.a It is equally concerned about the author's and counsel's allegation that Mr. Pinto's request for release to the Advisory Committee on the Power of Mercy was denied because of his previous complaint(s) to the Committee. In this context, the Committee notes that the main theme of the author's correspondence (in excess of 20 letters, including 2 to the Special Rapporteur for follow-up on views) pertains primarily to the implementation of the recommendations in the previous case.
8.3 The author has complained about appalling conditions of detention and harassment at the Carrera Convict Prison. The State party has only refuted that allegation in general terms; on the other hand, the author has failed to provide details on the treatment he was subjected to, other than by reference to conditions of detention that affected all inmates equally. On the basis of the material before it, the Committee concludes that there has been no violation of article 7. However, to convey to the author that the prerogative of mercy would not be exercised and his early release denied because of his human rights complaints reveals lack of humanity and amounts to treatment that fails to respect the author's dignity, in violation of article 10, paragraph 1.
8.4 As to the author's claim of denial of medical treatment, the Committee notes that the author was provided with an opportunity to comment on the State party's detailed account of 4 March 1993 in this respect; he retained that opportunity even after informing the Committee that comments allegedly prepared on 28 May 1994 had not reached the Committee. He never subsequently provided any information as to the contents of that document. As a result, the State party's submission that Mr. Pinto did receive ophthalmologic, dental and stress treatment is uncontested. In the circumstances, the Committee finds that such medical attention as the author received while on death row did not violate articles 7 or 10, paragraph 1.
8.5 The author has finally contended that his correspondence is being interfered with arbitrarily, in violation of his right to privacy. Although the State party has failed to comment on that allegation, the Committee notes that the material before it does not reveal that the State party deliberately withheld or intercepted some of the author's letters to the Committee; many letters written before and after the adoption of the admissibility decision in October 1994, including handwritten "copies" of letters to the Permanent Secretary of the Ministry of National Security and the Attorney-General, and which contained serious allegations against the State party, did in fact reach the Committee without undue delay. There is no evidence that their content was interfered with. After carefully weighing the information available to it, the Committee finds no violation of article 17, paragraph 1, of the Covenant.
9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee reveal a violation of article 10, paragraph 1, of the Covenant.
10. The Committee is of the view that Mr. Pinto is entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective remedy. This should include measures that will prevent a recurrence of treatment such as the author has been subjected to.
11. By ratifying the Optional Protocol, the State party has recognized the competence of the Committee to establish whether there has been a violation of the Covenant or not. It has further undertaken to ensure to all individuals subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation of the Covenant has been found. The Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to its views.
12. The Committee notes that the State party has not thus far given effect to the Committee's views of 20 July 1990a in respect of Mr. Pinto's initial communication, in which the Committee decided that he was entitled to a remedy entailing his release. While the death sentence imposed on the author has been commuted to life imprisonment, the fact remains that he has not been released. The Committee notes its previous finding that the author did not have a fair trial. The continued detention of a person sentenced after an unfair trial may raise issues under the Covenant. The Committee therefore calls upon the State party to remedy the violations of the Covenant established in the views of 20 July 1990 by releasing the author and to inform the Committee of any action taken in this regard as soon as possible.
[Adopted in English, French and Spanish, the English text being the original version.]
Notes
a Official Records of the General Assembly, Forty-fifth session, Supplement No. 40 (A/45/40), vol. II, annex IX.H, communication No. 232/1987 (Pinto v. Trinidad and Tobago), views adopted on 20 July 1990.
K. Communication No. 519/1992, Lyndon Marriott v. Jamaica
(views adopted on 27 October 1995, fifty-fifth session)
Submitted by: Lyndon Marriott [represented by counsel]
Victim: The author
State party: Jamaica
Date of communication: 14 July 1992 (initial submission)
Date of decision on admissibility: 30 June 1994
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 27 October 1995,
Having concluded its consideration of communication No. 519/1992, submitted to the Human Rights Committee by Mr. Lyndon Marriott 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 Lyndon Marriott, a Jamaican citizen currently serving a sentence of life imprisonment at St. Catherine District Prison. 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 arrested on 12 March 1987 and charged with the murder on the same day of Aston Nugent. He was tried in the Home Circuit Court, Kingston, found guilty as charged and sentenced to death on 16 December 1987. The Court of Appeal dismissed his appeal on 3 October 1988. A further petition for special leave to appeal was dismissed by the Judicial Committee of the Privy Council on 4 October 1990. According to counsel, the author's case has been reviewed pursuant to the Offences against the Person (Amendment) Act, 1992. The murder for which the author was convicted has been classified as a non-capital murder; consequently, the author's death sentence was commuted to life imprisonment in December 1992. He will be entitled to parole after 15 years.
2.2 During the trial, Rosetta Brown, a former girlfriend of the author and, at the time of the incident, the girlfriend of the deceased, testified that on 12 March 1987, the author arrived at the deceased's house, at which she was staying, and told her to go home. She walked over to a neighbour's yard, followed by the author and the deceased. The two men started a dispute about her. Nugent apparently tried to disengage the author, who had taken hold of Brown's blouse, upon which the author stabbed Nugent with a knife. Rosetta Brown testified that she saw the author take out the knife from his waist, but that she could not see him stab Nugent, since she was standing behind the deceased. Dorette Williams, a neighbour, testified that she saw the author stab the deceased in the chest.
2.3 The third prosecution witness, Rosemarie Barnett, was another friend of both the deceased and the author. She testified that the author had come to her house in the morning of 12 March 1987, threatening to kill Nugent. He returned to her home an hour later, holding a knife with blood on the handle and telling her that he had stabbed him.
2.4 In an unsworn statement from the dock, the author contended that Nugent had pushed and kicked him; that Nugent had then pulled a knife from his pocket and raised it in order to stab the author; and that, in the ensuing struggle, Nugent was stabbed.
The complaint
3.1 The author contends that he was denied a fair hearing by an impartial tribunal, in violation of section 20 (1) of the Jamaican Constitution and article 14 of the Covenant. He claims that the judge failed to direct the jury properly on the issue of provocation and that he withdrew the issue of self-defence from it. Moreover, the trial judge was allegedly biased against the author and made ironical and provocative comments on the sentence, which were later criticized by the Court of Appeal and which, according to the author, provide further evidence of the court's bias.
3.2 The author further contends that the foreman of the jury was an acquaintance of the deceased and that the court was therefore not impartial. It is further submitted that the defence was not informed at the preliminary hearing that the prosecution would call a third witness at the trial, so that no counter-arguments could be prepared.
3.3 Furthermore, the author submits that before the Court of Appeal, his counsel, who had not represented him at first instance, made no submissions in support of the appeal. Counsel, who was assigned to the case by the Jamaica Council for Human Rights, explains that there were issues which could have been raised at first instance, but, since "the incompetence of counsel is not a ground for appeal", he claimed that it would have been futile to canvass that aspect.
3.4 The author finally asserts that the time spent on death row, during which he could not avail himself of appellate remedies, constitutes cruel, inhuman or degrading treatment within the meaning of section 17 (1) of the Jamaican Constitution and article 7 of the Covenant.
The State party's observations on admissibility and the author's comments thereon
4.1 By submission of 22 June 1993, the State party argues that the communication is inadmissible. It refers to section 25 of the Jamaican Constitution, which provides that anyone who alleges that any of his constitutional rights have been violated may apply to the Supreme Court for redress. The right to fair trial is protected by section 20 of the Constitution. Since the author has not filed a constitutional motion, the State party argues that the communication is inadmissible for failure to exhaust domestic remedies.
4.2 The State party further argues that the communication raises issues of facts and evidence which the Committee is not competent to determine. It argues that the communication is inadmissible also on that ground.
5.1 In his comments on the State party's submission, counsel for the author contests that an application to the Supreme Court of Jamaica under section 25 of the Jamaican Constitution is an available and effective remedy in the circumstances of the author's case. In that connection, he states that no legal aid is available to the author to pursue that remedy. He further argues that, since the author had available to him an appeal to the Court of Appeal and to the Privy Council, the Supreme Court would not have exercised its powers, pursuant to section 25, paragraph 2, of the Constitution.
5.2 With regard to his claim under article 7 of the Covenant, counsel claims that a constitutional motion would have been ineffective, since the Supreme Court would have considered itself bound by the decision of the Judicial Committee of the Privy Council in 1981 (Riley v. Attorney-General), in which it was held that, whatever the reasons for delay, the Privy Council would not allow a ground that an execution contravened section 17 of the Jamaican Constitution.
5.3 Finally, counsel argues that the author does not request the Human Rights Committee to evaluate the facts of the case and that he does not raise issues of facts and evidence. Counsel emphasizes that the author requests the Committee to determine whether he has received a fair hearing within the meaning of article 14 of the Covenant, and that the facts and issues of the case are relevant, bearing in mind that a defendant should not be convicted of a capital offence except upon clear and incontrovertible evidence.
The Committee's admissibility decision
6.1 The Committee considered the admissibility of the communication during its fifty-first session.
6.2 The Committee recalled its constant jurisprudence that for purposes of article 5, paragraph 2 (b), of the Optional Protocol, domestic remedies must be both effective and available. The Committee noted that the Supreme Court of Jamaica had, in recent cases, allowed applications for constitutional redress in respect of breaches of fundamental rights, after the criminal appeals in those cases had been dismissed. However, the Committee also recalled that the State party had indicated on several occasionsa that no legal aid was made available for constitutional motions. The Committee considered that, in the absence of legal aid, a constitutional motion did not, in the circumstances of the instant case, constitute an available remedy which had to be exhausted for purposes of the Optional Protocol. In this respect, the Committee therefore found that it was not precluded by article 5, paragraph 2 (b), from considering the communication.
6.3 As regards the author's allegations relating to the conduct of the trial by the judge, the evaluation of evidence by the court, and the judge's instructions to the jury, the Committee recalled that it was generally for the appellate courts of States parties to the Covenant to evaluate the facts and evidence in a particular case; similarly, it was for the appellate courts and not for the Committee to review specific instructions to the jury by the judge, unless it was clear that the instructions to the jury were arbitrary or amounted to a denial of justice, or that the judge manifestly had violated his obligation of impartiality. The author's allegations did not show that the judge's instructions or the conduct of the trial suffered from such defects. In that respect, therefore, the author's claims did not come within the competence of the Committee. Accordingly, that part of the communication was inadmissible as incompatible with the provisions of the Covenant, under article 3 of the Optional Protocol.
6.4 As regards the author's allegation that the foreman of the jury was a friend of the deceased, the Committee noted that that matter was not raised by the author or his counsel during the trial or at appeal. That part of the communication was therefore inadmissible for failure to exhaust domestic remedies.
6.5 The Committee noted that the author also claimed that his defence counsel had not been informed that the prosecution would call a third witness and that the matter was brought to the attention of the judge, but that the judge failed to adjourn the hearing to give counsel time to prepare for the cross-examination. The Committee considered that that claim might raise issues under article 14, paragraph 3 (b) and (e), of the Covenant, that needed to be examined on the merits.
6.6 As regards the author's claim concerning his legal representation at the appeal proceedings, the Committee noted that the author's lawyer was provided by the Jamaica Council for Human Rights, a non-governmental organization. The Committee considered therefore that the alleged failure to properly represent the author could not be attributed to the State party. That part of the communication was therefore inadmissible under article 3 of the Optional Protocol.
6.7 With regard to the author's claim under article 7, the Committee considered that the author had failed to show what steps he had taken to bring that complaint to the attention of the authorities in Jamaica. In this respect, the author had failed to fulfil the requirement of exhaustion of domestic remedies set out in article 5, paragraph 2 (b), of the Optional Protocol.
7. Accordingly, the Human Rights Committee decided that the communication was admissible insofar as it appeared to raise issues under article 14, paragraph 3 (b) and (e) of the Covenant.
The State party's submission on the merits and counsel's comments
8. By submission of 27 January 1995, the State party points out that the allegations relating to article 14, paragraph 3 (b) and (e), declared admissible by the Committee, relate to an issue which should have been raised as a ground for appeal. The State party cannot be held responsible for counsel's failure to do so. Since the author thus failed to avail himself of a remedy which was available to him, the State party denies that a violation has taken place.
9.1 In his comments on the State party's submission, counsel contends that the issue arising under article 14, paragraph 3 (b) and (e), involves the responsibility of the State party, in that article 14 of the Covenant is embodied in the Jamaican Constitution, whereas constitutional redress is not available to the author because of the lack of legal aid.