A/52/40
A/52/40
United Nations
Report of the
Human Rights Committee
Volume II
General Assembly
Official Records • Fifty-second Session
Supplement No. 40 (A/52/40)
A/52/40
Report of the
Human Rights Committee
Volume II
General Assembly
Official Records • Fifty-second Session
Supplement No. 40 (A/52/40)
United Nations • New York, 1999
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 VI and VII of the report of the Human Rights Committee. Chapters I to VIII and annexes I to V and VIII are contained in volume I.
0255-2353
[Original: English/French/Spanish]
[31 May 1999]
CONTENTS
Chapter
I. ORGANIZATIONAL AND OTHER MATTERS
A. States parties to the Covenant
B. Sessions
C. Elections, membership and attendance
D. Solemn declaration
E. Election of officers
F. Special rapporteurs
G. Working groups
H. Other matters
I. Staff resources
J. Publicity for the work of the Committee
K. Documents and publications relating to the work of the
Committee
L. Future meetings of the Committee
M. Adoption of the report
II. METHODS OF WORK OF THE COMMITTEE UNDER ARTICLE 40 OF THE COVENANT: OVERVIEW OF PRESENT WORKING METHODS
A. Informal meeting on procedures and later developments
B. Recent decisions on procedures
C. Other issues relating to methods of work 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 of the
Covenant
B. Observations of States parties on the Committee's concluding
comments
CONTENTS (continued)
Chapter
IV. STATES THAT HAVE NOT COMPLIED WITH THEIR OBLIGATIONS UNDER
ARTICLE 40
V. CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER
ARTICLE 40 OF THE COVENANT
A. Denmark
B. United Kingdom of Great Britain and Northern Ireland
(Hong Kong)
C. Switzerland
D. Gabon
E. Peru
F. Germany
G. Bolivia
H. Georgia
I. Colombia
J. Portugal (Macau)
K. Lebanon
L. Slovakia
M. France
N. India
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
F. Remedies called for under the Committee's Views
VIII.FOLLOW-UP ACTIVITIES UNDER THE OPTIONAL PROTOCOL
CONTENTS (continued)
Chapter Page
Annexes
I. STATES PARTIES TO THE INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTS AND TO THE OPTIONAL PROTOCOLS AND STATES WHICH
HAVE MADE THE DECLARATION UNDER ARTICLE 41 OF THE COVENANT AS AT
1 AUGUST 1997
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
II. MEMBERSHIP AND OFFICERS OF THE HUMAN RIGHTS COMMITTEE, 1996-1997
A. Membership
B. Officers
III. SUBMISSION OF REPORTS AND ADDITIONAL INFORMATION BY STATES PARTIES
UNDER ARTICLE 40 OF THE COVENANT DURING THE PERIOD UNDER REVIEW
IV. STATUS OF REPORTS CONSIDERED DURING THE PERIOD UNDER REVIEW AND OF
REPORTS STILL PENDING BEFORE THE COMMITTEE
V. LIST OF STATES PARTIES' DELEGATIONS THAT PARTICIPATED IN THE
CONSIDERATION OF THEIR RESPECTIVE REPORTS BY THE HUMAN RIGHTS
COMMITTEE AT ITS FIFTY-EIGHTH, FIFTY-NINTH AND SIXTIETH SESSIONS
VI. 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. 481/1991; Jorge Villacnés Ortega v. Ecuador
(Views adopted on 8 April 1997, fifty-ninth session) ......... 1
B. Communication No. 526/1993; Michael and Brian Hill v. Spain
(Views adopted on 2 April 1997, fifty-ninth session) ......... 5
Appendix ..................................................... 20
C. Communication No. 528/1993; Michael Steadman v. Jamaica
(Views adopted on 2 April 1997, fifty-ninth session) ......... 22
D. Communication No. 529/1993; Hervin Edwards v. Jamaica
(Views adopted on 28 July 1997, sixtieth session) ............ 28
CONTENTS (continued)
Chapter Page
E. Communication No. 533/1993; Harold Elahie v. Trinidad and
Tobago (Views adopted on 28 July 1997, sixtieth session) ..... 34
F. Communication No. 535/1993; Lloydell Richards v. Jamaica
(Views adopted on 31 March 1997, fifty-ninth session) ........ 38
Appendix ..................................................... 45
G. Communication No. 538/1993; Charles E. Stewart v. Canada
(Views adopted on 1 November 1996, fifty-eighth session) ..... 47
Appendix ..................................................... 60
H. Communication No. 549/1993; Francis Hopu and Tepoaitu Bessert
v. France (Views adopted on 29 July 1997, sixtieth session) .. 70
Appendix ..................................................... 81
I. Communication No. 550/1993; Robert Faurisson v. France
(Views adopted on 8 November 1996, fifty-eighth session) ..... 84
Appendix ..................................................... 97
J. Communication No. 552/1993; Wieslaw Kall v. Poland
(Views adopted on 14 July 1997, sixtieth session) ............ 105
Appendix ..................................................... 113
K. Communication No. 558/1993; Giosue Canepa v. Canada
(Views adopted on 3 April 1997, fifty-ninth session) ......... 115
Appendix ..................................................... 123
L. Communication No. 560/1993; A v. Australia
(Views adopted on 3 April 1997, fifty-ninth session) ......... 125
Appendix ..................................................... 145
M. Communication No. 561/1993; Desmond Williams v. Jamaica
(Views adopted on 8 April 1997, fifty-ninth session) ......... 147
N. Communication No. 572/1994; Hezekiah Price v. Jamaica
(Views adopted on 6 November 1996, fifty-eighth session) ..... 153
O. Communication No. 587/1994; Irvine Reynolds v. Jamaica
(Views adopted on 3 April 1997, fifty-ninth session) ......... 157
P. Communication No. 607/1994; Michael Adams v. Jamaica
(Views adopted on 30 October 1996, fifty-eighth session) ..... 163
Q. Communication No. 612/1995; Arhuacos v. Colombia
(Views adopted on 29 July 1997, sixtieth session) ............ 173
CONTENTS (continued)
Chapter Page
R. Communication No. 639/1995; Walker Lawson Richards and Trevor
Walker v. Jamaica (Views adopted on 28 July 1997, sixtieth
session) ..................................................... 183
S. Communication No. 671/1995; Jouni E. Länsman et al. v. Finland
(Views adopted on 30 October 1996, fifty-eighth session) ..... 191
T. Communication No. 692/1996; A. R. J. v. Australia
(Views adopted on 28 July 1997, sixtieth session) ............ 205
U. Communication No. 696/1996; Peter Blaine v. Jamaica
(Views adopted on 17 July 1997, sixtieth session) ............ 216
Appendix ..................................................... 224
V. Communication No. 702/1996; Clifford McLawrence v. Jamaica
(Views adopted on 18 July 1997, sixtieth session) ............ 225
W. Communication No. 707/1996; Patrick Taylor v. Jamaica
(Views adopted on 14 July 1997, sixtieth session) ............ 234
Appendix ..................................................... 243
X. Communication No. 708/1996; Neville Lewis v. Jamaica
(Views adopted on 17 July 1997, sixtieth session) ............ 244
Appendix ..................................................... 253
VII. DECISIONS OF THE HUMAN RIGHTS COMMITTEE DECLARING COMMUNICATIONS
INADMISSIBLE UNDER THE OPTIONAL PROTOCOL ......................... 256
A. Communication No. 579/1994; Klaus Werenbeck v. Australia
(Decision of 27 March 1997, fifty-ninth session) ............. 256
B. Communication No. 593/1994; Patrick Holland v. Ireland
(Decision of 25 October 1996, fifty-eighth session) .......... 266
C. Communication No. 601/1994; E. Julian and C. M. Drake v.
New Zealand (Decision of 3 April 1997, fifty-ninth session) .. 273
D. Communication No. 603/1994; Andres Badu v. Canada
(Decision of 18 July 1997, sixtieth session) ................. 282
E. Communication No. 604/1994; Joseph Nartey v. Canada
(Decision of 18 July 1997, sixtieth session) ................. 288
F. Communication No. 632/1995; Herbert T. Potter v. New Zealand
(Decision of 28 July 1997, sixtieth session) ................. 294
G. Communication No. 643/1994; Peter Drobek v. Slovakia
(Decision of 14 July 1997, sixtieth session) ................. 300
Appendix ..................................................... 303
CONTENTS (continued)
Chapter Page
H. Communication No. 654/1995; Kwame Williams Adu v. Canada
(Decision of 18 July 1997, sixtieth session) ................. 304
I. Communication No. 658/1995; van Oord v. the Netherlands
(Decision of 23 July 1997, sixtieth session) ................. 311
J. Communication No. 659/1995; B. L. v. Australia
(Decision of 8 November 1996, fifty-eighth session) .......... 317
K. Communication No. 661/1995; Paul Triboulet v. France
(Decision of 29 July 1997, sixtieth session) ................. 319
L. Communication No. 674/1995; Lúdvik E. Kaaber v.Iceland
(Decision of 5 November 1996, fifty-eighth session) .......... 328
M. Communication No. 679/1996; Darwish v. Australia
(Decision of 28 July 1997, sixtieth session) ................. 332
N. Communication No. 698/1996; Gonzalo Bonelo Sánchez v. Spain
(Decision of 29 July 1997, sixtieth session) ................. 337
O. Communication No. 700/1996; Trevor L. Jarman v. Australia
(Decision of 8 November 1996, fifty-eighth session) .......... 340
P. Communication No. 755/1997; Clarence T. Maloney v. Germany
(Decision of 29 July 1997, sixtieth session) ................. 342
Q. Communication No. 758/1997; José M. Gómez Navarro v. Spain
(Decision of 29 July 1997, sixtieth session) ................. 345
R. Communication No. 761/1997; Ranjit Singh v. Canada
(Decision of 29 July 1997, sixtieth session) ................. 348
VIII.LIST OF DOCUMENTS ISSUED DURING THE REPORTING PERIOD
ANNEX VI
Views of the Human Rights Committee under article 5, paragraph 4,
of the Optional Protocol to the International Covention on Civil
and Political Rights
A. Communication No. 481/1991; Jorge Villacnés Ortega v. Ecuador
(Views adopted on 8 April 1997, fifty-ninth session)
Submitted by: Jorge Villacrés Ortega
[represented by Ha. E. Monge]
Victim: The author
State party: Ecuador
Date of communication: 4 November 1991 (initial submission)
Date of decision on admissibility: 16 March 1995
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 8 April 1997,
Having concluded its consideration of Communication No. 481/1991 submitted to the Human Rights Committee on behalf of Mr. Jorge Villacrés Ortega 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 the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The author of the communication is Jorge Villacrés Ortega, an Ecuadorian citizen, residing in Quito, Ecuador. At the time of submission of the communication he was imprisoned at the Cárcel de Varones at Quito. He claims to be a victim of violations by Ecuador of articles 2, 7, 9 and 14 of the International Covenant on Civil and Political Rights. He is represented by the Comisión Ecuménica de Derechos Humanos (CEDHU), a non-governmental organization in Quito, Ecuador.
Facts as submitted by the author
2.1 The author is a carpenter by profession. He was detained on 19 October 1989 by police officers, who found less than one gram of cocaine in his pockets, and arrested him on suspicion of trafficking in cocaine. He was tried by the Tribunal Cuarto de Pichincha, found guilty as charged and sentenced, on 3 June 1991, to eight years' imprisonment. He appealed to the Supreme Court of Justice, which quashed the conviction and ordered him sent to a rehabilitation programme for drug addicts.
2.2 With regard to his arrest, the author states that he was taken to Interpol by agents of the SIC-P (security police) and that a representative of CEDHU visited him at the police station and saw the traces of beatings on his back, arm and stomach.
2.3 He admitted to possession of cocaine, which he claimed to have bought for his own consumption. The forensic tests carried out proved that he was an addict. Although the report from the office of the public prosecutor recommended that he be sent to a hospital for disintoxication treatment, this was ignored by the sentencing judge.
2.4 Counsel states that the author was tortured by prison personnel following
an escape attempt by the author's cellmates, on 1 June 1990. The medical report
stated that "... he had a reddish inflammation on both eyelids due to the
introduction of aji (peppers) and gas; tear and prickly conjunctivitis; multiple
round black traces on his abdomen and thorax resulting from the application of
electric discharges, bruises on his thigh and skin stripped off his leg ...".
2.5 With respect to the exhaustion of domestic remedies, the author, while in prison, filed a recurso de amparo. There is no further information concerning the status of that recourse.
Complaint
3.1 The author claims to be a victim of a violation of article 7 because he was subjected to torture and ill-treatment following his arrest. This was attested to by a member of CEDHU.
3.2 Although the author does not specifically invoke article 10 of the Covenant, the facts before the Committee concerning alleged ill-treatment while the author was imprisoned appear to raise issues under that article.
3.3 The author also claims to be a victim of a violation of article 9 because he was subjected to arbitrary arrest and detention although he was not a drug trafficker but only a consumer.
3.4 It is further submitted by the author that his trial was unfair, in violation of article 14 of the Covenant. In this respect, he contends that he was convicted despite the reports submitted by the public prosecutor's office recommending that he undergo drug rehabilitation treatment, in accordance with Ecuadorian law.
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 prior to the Committee's admissibility decision.
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, subparagraph 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 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, subparagraph 2 (b), of the Optional Protocol.
5.4 With respect to the author's complaint that he had been subjected to torture and ill-treatment in violation of articles 7 and 10 of the Covenant, as attested to by a member of CEDHU, the Committee found that the facts as submitted by the author were substantiated, for purposes of admissibility.
5.5 The Committee found that, for purposes of admissibility, the arrest of the author on possession of cocaine was not arbitrary. Nor had the author submitted sufficient evidence to substantiate, for purposes of admissibility, a claim of a violation of article 14 of the Covenant.
6. On 16 March 1995, the Human Rights Committee decided that the communication was admissible. The author should be requested to provide medical reports in respect of the allegations of ill-treatment he had suffered.
Observations by the State party about the merits of the case and comments thereon by the author
7.1 In two submissions on the merits of the communication, dated 18 October 1995 and 23 May 1996, the State party states that Jorge Oswaldo Villacrés Ortega has been arrested 22 times on a variety of offences, including the 1989 detention for possession of cocaine.
7.2 With regard to the allegations of torture and ill-treatment made by the author (see paragraphs 2.2 and 2.4 above), the State party forwards the results of a police investigation, dated 1 April 1996 and signed by two police officials of the Pichincha district, indicating that no medical report or other evidence of torture or ill-treatment of Mr. Villacrés has been found. Reference is made to allegations by the defence counsel of Mr. Villacrés to the effect that a medical report did exist. The police inspectors allegedly were unable to obtain a copy of the report from the CEDHU office at Quito.
8.1 By a submission of 31 May 1996, CEDHU confirms that Mr. Villacrés was detained on 19 October 1989 and released on 17 January 1992. With respect to the alleged ill-treatment during detention, CEDHU states that it does not have the medical report requested by the Committee in subparagraph 6 (c) of the admissibility decision. CEDHU contends that the report is probably filed with the record of the Villacrés case before the Ecuadorian Supreme Court.
8.2 On 12 October 1996, CEDHU submitted a copy of the medical report, dated 9 June 1990 and certified before a magistrate (Juez Primero de lo Penal de Procuraduría), stating that the injuries suffered were consistent with those produced by irritating substances and by the application of electrodes.
Examination on 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 of ill-treatment (see paragraphs 2.2 and 2.4 above), two issues arise: in respect of the first, i.e., the ill-treatment the author suffered at the hands of the police following his arrest, the Committee considers that this claim has not been substantiated. As to the second issue, i.e., the ill-treatment the author suffered after an escape attempt by his cellmates, the Committee has noted the State party's claim that it was unable to trace the author's medical reports, although the copy in the case file reveals that this report was certified in the presence of a magistrate. In the circumstances, due weight must be given to the author's allegations, to the extent that they have been substantiated by the medical reports submitted by counsel, in particular that of 9 June 1990, where it is confirmed that the author showed signs of ill-treatment. In the Committee's view, the treatment suffered by the author after the escape attempt of his cellmates amounts to cruel and inhuman treatment, in violation of article 7 and article 10, paragraph 1, of the Covenant.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose violations of article 7 and article 10, paragraph 1, of the Covenant.
11. Pursuant to article 2, subparagraph 3 (a), of the Covenant, the author is entitled to an effective remedy, entailing compensation for the ill-treatment suffered. The Committee reaffirms the obligation to treat individuals deprived of their liberty with respect for the inherent dignity of the human person. The State party is under an obligation to ensure that similar events do not occur in the future.
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 is established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to its Views.
B. Communication No. 526/1993; Michael and Brian Hill v. Spain
(Views adopted on 2 April 1997, fifty-ninth session)
Submitted by: Michael and Brian Hill
Victims: The authors
State party: Spain
Date of communication: 1 October 1992 (initial submission)
Date of decision on admissibility: 22 March 1995
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 2 April 1997,
Having concluded its consideration of Communication No. 526/1993 submitted to the Human Rights Committee by Messrs. Michael and Brian Hill 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 the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The authors of the communication are Michael Hill, born in 1952, and Brian Hill, born in 1963, both British citizens, residing in Herefordshire, United Kingdom of Great Britain and Northern Ireland. They claim to be victims of violations by Spain of articles 9 and 10 and article 14, paragraphs 1, 2 and subparagraphs 3 (b) and (e), of the International Covenant on Civil and Political Rights. Michael Hill also invokes article 14, subparagraph 3 (d), of the Covenant. The Covenant entered into force for Spain on 27 August 1977, and the Optional Protocol on 25 April 1985.
Facts as submitted by the authors
2.1 The authors owned a construction firm in Cheltenham, United Kingdom, which declared bankruptcy during the detention of the authors in Spain. In July 1985, they went on holiday to Spain. The Gandía police arrested them on 16 July 1985, on suspicion of having firebombed a bar in Gandía, an accusation which the authors have denied since the time of their arrest, claiming that they were in the bar until 2.30 a.m. but did not return at 4 a.m. to set fire to the premises.
2.2 At the police station, the authors requested the police to allow them to contact the British Consulate, so as to obtain the aid of a consular representative who could assist as an independent interpreter. The request was denied, and a young, unqualified student interpreter was called to assist in the interrogation, which took place without the presence of defence counsel. The authors state that they could not express themselves properly, as they did not speak Spanish, and the interpreter's English was very poor. As a result, serious misunderstandings allegedly arose. They deny having been informed of their rights at the time of their arrest or during the interrogation and allege that they were not properly informed of the reasons for their detention until seven and eight hours, respectively, after the arrest.
2.3 The authors further state that they were confronted with an alleged eyewitness to the crime during a so-called identification parade made up of the authors, in handcuffs, and two uniformed policemen. The witness, who initially could not describe the authors of the crime, eventually pointed them out.
2.4 They also complain that their new camper, valued at 2.5 million pesetas, as well as all their money and other personal effects, were confiscated and not returned by the police.
2.5 On 19 July 1985, the authors were formally charged with arson and causing damage to private property. The indictment stated that the authors, on 16 July 1985, had left the bar at 3 a.m., driven away in their camper, returned at 4 a.m. and thrown a bottle containing petrol and petrol-soaked paper through a window of the bar.
2.6 On 20 July 1985, they appeared before the examining magistrate (Gandía No. 1) in order to submit a statement denying their involvement in the crime.
2.7 After having been held in police custody for 10 days, for five of which they were allegedly left without food and with only warm water to drink, they were transferred to a prison in Valencia.
2.8 On 29 July 1985, a lawyer was assigned to them for the preliminary hearing; this lawyer allegedly told the authors that, if they could pay a certain amount of money, they would be released. It is not clear from the authors' submissions how the preliminary hearing proceeded. It would appear, however, that they claim that confusion and misunderstandings were common, due to the incompetence of the interpreter. In this context, it is submitted that the police records stated that their camper operated on "petróleo" (diesel). When asked by the examining magistrate (who was also under the impression that the camper ran on diesel) what substance their spare container contained, they replied to him that it was filled with petrol, which was translated as "petróleo" by the interpreter. The judge then said that they were lying. The authors attempted to explain that their camper ran on petrol and that in the back of the vehicle they had a spare four-litre container filled with petrol. According to them, the judge must have seen or smelled from a sample that the container was indeed filled with "gasolina" (petrol), and since he believed that the camper ran on diesel, he must have thought that there was a container with petrol for manufacturing the Molotov cocktail.
2.9 Upon conclusion of the preliminary hearing, the authors were informed that the trial would take place in November 1985. However, the trial was delayed, reportedly on the ground that some documents could not be found. On 26 November 1985, the authors were summoned to court to sign some papers, whereupon the judge told them that he would contact their lawyer in order to set a new date for the trial. On 10 December 1985, the authors informed the legal aid lawyer that his services were no longer required, as they were not satisfied with his conduct of the case.
2.10 The authors secured private legal representation on 4 December 1985. On 17 January 1986, the lawyer submitted an application to the court for the authors' release on bail, mainly on the ground that their construction firm was in a state of bankruptcy owing to their detention. Upon the advice of the public prosecutor, bail was denied on 21 February 1986. The authors complained that, although they had paid large sums of money to the lawyer, no progress was being made in their case, as he was ignoring their instructions. On 31 July 1986, they dismissed the lawyer. As the authors did not hear from him again, they assumed that the lawyer had notified the relevant authorities of their decision and that a legal aid lawyer would be assigned to them. However, it was not until 22 October 1986 that the lawyer notified the court of his withdrawal from the case.
2.11 On 1 November 1986, a new legal aid lawyer was assigned to the authors. The trial was scheduled to start on 3 November 1986. The first question from the public prosecutor was what fuel their camper used. The authors again replied that it ran on petrol, which this time was translated as "gasolina". After having given the same reply three times, the authors requested an adjournment of the trial, so that the prosecution could verify their claim. They also asked for an adjournment on the ground that they had had only a 20-minute interview with their defence lawyer since he had been assigned to their case. The trial was postponed for two weeks.
3.1 The authors complain that the legal aid lawyer did not make much effort to prepare their defence. They state that, when he visited them on 1 November 1986, he was accompanied by an interpreter who spoke barely any English; the lawyer did not even have the case file with him. After the trial was adjourned, the lawyer only visited them on 14 November 1986, for 40 minutes, again without the case file, and this time without the interpreter. The authors further claim that, although the lawyer was assigned and paid by the State party, he demanded 500,000 pesetas from their father for alleged expenses prior to the hearing.
3.2 With the assistance of two bilingual inmates, the authors prepared their own defence. They decided that Michael would defend himself in court and that Brian would leave it to the lawyer, to whom they provided all the relevant material.
3.3 On 17 November 1986, the authors were tried in the Provincial High Court of Valencia. Through the interpreter, Michael Hill informed the judge of his intention to defend himself in person, pursuant to article 6, subparagraph 3 (c), of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The judge asked him whether he spoke Spanish and whether he was a lawyer; when he replied in the negative, the judge told him to sit down and be quiet.
3.4 The prosecution's case was based solely on an alleged eyewitness, who had testified during the preliminary investigations that he had met with the authors prior to the incident and that their camper was parked in front of his house. At about 4 a.m., he had seen two youths resembling the authors throw a flaming bottle into the bar and leave in a grey camper. He had immediately called the police. The authors submit that the statements made by the witness during the preliminary investigations are contradictory in a number of respects and that, during the trial, the witness could not identify them. He was asked three times by the judge to take a look at the accused and each time the witness said that "he could not remember the youths", that "he was an old man" and that "it had happened 16 months ago". Furthermore, under cross-examination, he failed to give a clear description of the camper and stated that "the vehicle used by the perpetrators could have been British, Austrian or even Japanese".
3.5 The authors explain that, as the lawyer only asked the witness four irrelevant questions about the camper and did not take up the list of questions which they had prepared specially about the irregularities in the so-called identification parade, Michael Hill again requested the right to defend himself in person. He informed the judge that he wanted to cross-examine the prosecution witness and call a witness for the defence who was present in court. The judge allegedly replied that he would have the opportunity to do all those things on appeal, demonstrating clearly that at that point he had already decided to convict them in violation of their right to be presumed innocent. After a trial lasting barely 40 minutes, the authors were convicted as charged and sentenced to six years and one day of imprisonment and to the payment of 1,935,000 pesetas in damages to the owner of the bar.
3.6 The authors then wrote numerous letters to various offices, such as the British Embassy in Madrid, the Ministry of Justice, the Supreme Court, the King of Spain and the Ombudsman, and to their lawyer, complaining of an unfair trial and requesting information on how to proceed further. The lawyer replied that his legal aid services terminated upon the conclusion of the trial and that if they required further assistance from him they would have to pay. The Ministry of Justice referred the authors to the court of first instance. By letter of 15 January 1987, they requested the High Court of Valencia for a retrial on the ground that their trial had been unconstitutional and in violation of the European Convention. In October 1987, they submitted for the sixth time a petition to the High Court of Valencia, complaining of unfair trial and this time requesting it to assign legal counsel to them. By note of 9 December 1987, the Court replied that their complaint was groundless and that it could not deal with the matter.
3.7 In the meantime, and on 29 January 1987, they submitted notification of their intention to appeal. Subsequently they appointed a private lawyer to represent them. On 24 March 1987 the Supreme Court rejected the appointment of the private lawyer because he was not registered in Madrid. On 24 July 1987 the authors forwarded their grounds of appeal to the Supreme Court. Since the authors were not allowed to defend themselves in person, the Court appointed a legal aid lawyer on 17 December 1987. On 28 March 1988, the lawyer submitted to the Court that he did not find grounds for appeal, after which the Court appointed a second legal aid lawyer, on 12 April 1988, who also stated that he found no grounds for appeal. On 6 June 1988, the Supreme Court, in conformity with article 876 of the Code of Criminal Procedure of Spain, did not hear the appeal, giving the authors 15 days to find a private lawyer. The authors then wrote to the Bar Association (Colegio de Abogados), in September 1987, requesting it to assign a lawyer and a solicitor for their appeal; no reply was received, however.
3.8 In March 1988, the Ministry of Justice informed the authors that they could initiate an action for amparo before the Constitutional Court, since the rights which they claimed had been violated were protected by the Spanish Constitution.
3.9 On 6 July 1988, the authors (formally) petitioned the court of first instance for their release, pursuant to article 504 of the Code of Criminal Procedure, which provides that a prisoner may be released pending the outcome of his or her appeal when he or she has served one half of the sentence imposed. On 14 July 1988, the authors were released and returned to the United Kingdom, having informed the Spanish authorities of their address in the United Kingdom and of their intention to pursue the case.
3.10 The authors appealed (remedy of amparo) to the Constitutional Court on 17 August 1988. Upon their return to the United Kingdom, the authors made several attempts to contact the lawyer and solicitor in Spain, in order to obtain information on the status of their appeal and the court documents, to no avail. Finally, in April or May 1990, they were informed through the British Embassy in Madrid that the Constitutional Court had decided not to allow the appeal to proceed. With this, it is submitted, all available domestic remedies were exhausted.
Complaint
4.1 The authors, who proclaim their innocence, express their indignation at the judicial and bureaucratic system in Spain. According to them, it was likely that they were the victims of a swindle by the bar owner, who could have had a motive for setting the fire. They protest that the identification parade was not conducted in accordance with the law. They complain that the judge did not intervene when it became clear that the legal aid lawyer was not defending them properly. Moreover, by refusing to allow Michael Hill to conduct his own defence and to call a witness on their behalf, the judge violated the principle of equality of the parties. It is submitted that the use by the police investigating unit and the judge of Michael Hill's prior criminal record was unjust and prejudicial not only to Michael but also to Brian Hill.
4.2 As to article 14, paragraph 2, the authors claim that this principle was violated before, during and after the trial: before the trial, because of the judicial authorities’ repeated refusal to grant bail; during the trial, when the judge told Michael Hill that he would have the opportunity on appeal to defend himself and to call a witness for the defence; and immediately after the trial, before the verdict had been pronounced, when the legal aid lawyer started to negotiate with their father about the handling of the appeal.
4.3 The authors claim that the lack of cooperation by the Spanish authorities, as a result of which they themselves had to translate every single document with the help of other, bilingual prisoners, the lack of information in prison on Spanish legislation and the lack of competent interpreters during the interrogation by the police and during the preliminary hearing, together with the inadequate conduct of the defence by the State-appointed lawyer, amount to a violation of article 14, subparagraph 3 (b), of the Covenant.
4.4 Article 14, subparagraph 3 (d), is said to have been violated in Michael Hill's case because, during the trial, he was twice denied the right to defend himself in person. As a consequence, article 14, subparagraph 3 (e), was also violated, as he was also denied the opportunity to examine, on the brother's behalf, a witness who was waiting outside the courtroom.
State party's information and observations
5.1 In its statement of 11 April 1993, the State party argues that the authors abused the right of submission and that the communication should be declared inadmissible in accordance with article 3 of the Optional Protocol. From the information provided by the State party, including the texts of judgments and other documents, it appears that the latter raises no objection with respect to the exhaustion of domestic remedies.
5.2 The State party summarizes the situation in this case as follows:
Concerning the detention:
"1.On 16 July 1985, at around 4 a.m., two individuals, in a metallic grey camper with horizontal trim on the sides and rear and with a registration beginning with the letter A, arrived at the JM club, located in Grao de Gandía, and, after preparing a Molotov cocktail, threw it into the club, breaking several panes of glass above the door, then immediately fled the scene, having thereby started a fire in the premises.
"2.An eyewitness to the incident called the police.
"3.The police arrived at the scene, together with the fire brigade, and, after listening to the eyewitness, located the camper, registration A811 JAB, inside which they discovered a partly-empty plastic container with some four litres of petrol, and arrested the occupants of the camper, Messrs. Brian and Michael Hill.
"4.In the presence of an interpreter, the detainees were immediately informed of their rights.
"5.In the presence of the interpreter and with the assistance, at their request, of the legal aid lawyer on duty, the detainees made a statement to the police. They said that they had been in the club in the early hours of the day on which they were making their statement and had drunk 5 or 6 beers there before leaving at around 2.30 a.m. They admitted that the camper and the petrol container belonged to them, but denied having started the fire, acknowledging that 'they had in fact passed close by (the club) in the vehicle' after leaving the premises.
"6.During the identification parade, the police showed several persons to the eyewitness, and the said eyewitness recognized Messrs. Brian and Michael Hill as 'the persons who had set fire to the JM club the previous night by throwing a flaming bottle against its door, and who had fled in a large camper with a foreign registration'."
5.3 Concerning the appearance before the examining magistrate:
"1.On 17 July 1985, the day after the incident occurred, the Hill brothers testified before the examining magistrate at Gandía, assisted by the legal aid lawyer on duty, reiterating the statement they had made to the police the day before.
"2.Magistrate No. 1 ordered that various proceedings be conducted including an appraisal of the damage caused, which amounted to 1,935,000 pesetas. The other parties who had appeared before the police, including the eyewitness, reiterated their statements.
"3.On 19 July, Magistrate No. 1 of Gandía issued an order to institute criminal proceedings against the Hill brothers for the crime of arson, ordering them to be imprisoned and bail to be set.
"4.Further statements by the accused, an additional police file containing photographs and information provided by Interpol on the record of Michael John Hill, convicted in the United Kingdom for theft, breaking and entry, fraud, possession of stolen goods, forgery, traffic violations and arson.
"5.Impoundment of the camper in connection with the civil liability imposed during the pre-trial proceedings.
"6.Order terminating the pre-trial proceedings, issued by the court on 24 October 1985, and referral of the accused to the Provincial High Court of Valencia. Summons of the accused, who appointed a lawyer of their own choosing to conduct their defence.
"7.On 4 December 1985, the accused sent a statement to a subdivision of the Provincial High Court of Valencia, appointing Mr. Gunther Rudiger Jorda as their lawyer."
5.4 Concerning the oral proceedings:
"1.The defence lawyer chosen freely by the accused called only one witness, the same witness as had been produced by the Public Prosecutor’s Office, Mr. P., the eyewitness to the alleged crime.
"2.On 22 October 1986, it was announced that the oral proceedings would take place on 3 November and the parties were duly notified.
"3.On 28 October 1986, a representative of the defence lawyer communicated to the Chamber of the High Court hearing the case that, 'as differences had arisen between the accused and the defence lawyer, he was withdrawing from the case'.
"4.Court order for the accused to appoint a lawyer. The Hill brothers indicated that they wished to be assigned a legal aid lawyer.
"5.Having been assigned a legal aid lawyer, they were informed on 31 October 1986 that the date of the trial would be 3 November 1986. Legal record of the trial on that day, in which the Chamber hearing the case, in view of the lack of time given to prepare the defence, agreed to adjourn the trial and reschedule it for 17 November 1986.
"6.On 17 November 1986, oral proceedings took place. They opened with the defence submitting a statement by the accused on what had occurred, which was admitted by the Chamber; the direct opinion of the accused was thus made known. The trial was held, using the services of an interpreter, and the eyewitness was examined by both the prosecution and the defence.
"7.On 20 November 1986, the Provincial High Court of Valencia handed down its judgment, noting that the accused did not have a criminal record, and after examining the facts sentenced the Hill brothers to six years and one day in prison for the crime of arson and imposed civil liability for the damage caused by the fire."
5.5 Concerning the appeal to annul the judgment of the High Court filed by the Hill brothers:
"(a) Only Mr. Brian Anthony Hill appeared at the appeal proceedings. He appointed Mr. Gunther Rudiger Jorda as his lawyer, the same lawyer whom he and his brother had previously appointed and then dismissed five days before the trial;
"(b) The two brothers submitted a statement to the Supreme Court which was included in their case file;
"(c) As Mr. Rudiger Jorda could not represent the brothers in the Supreme Court, he requested that a legal aid lawyer be assigned to Brian Anthony Hill;
"(d) A legal aid lawyer was assigned, but he did not find any grounds whatsoever to justify the appeal;
"(e) A second legal aid lawyer, also appointed in accordance with article 876 of the Code of Criminal Procedure, did not find grounds for appeal either;
"(f) Two lawyers in succession found that there were no legal grounds for appeal. The proceedings were then referred to the Public Prosecutor's Office, to see whether it could find grounds for appeal. The Public Prosecutor's Office did not find grounds for appeal either and referred the case back;
"(g) An order was issued dismissing the appeal as not properly made and granting the appellant the right to appoint a lawyer of his choosing in order to put the appeal into proper legal form;
"(h) After he had failed to do so within the required time period, the case was filed;
"(i) During that time, the accused had violated the conditions of their conditional release by abandoning the address in Spain which they had given and fleeing the country."
5.6 Concerning the conditional release:
"On 14 July 1988, the Provincial High Court of Valencia, with the appeal to annul the judgment still pending, granted the Hill brothers a conditional release without bail and ordered them to appear on the first and fifteenth day of each month. The accused gave the British Embassy as their address, while they looked for an apartment."
5.7 Concerning the remedy of amparo:
"On 16 August 1988, the Hill brothers initiated an action for amparo before the Constitutional Court, requesting that a legal aid lawyer be assigned to them. After a lawyer was appointed, the application for amparo was submitted. On 8 May 1989, the Constitutional Court issued a reasoned and substantiated ruling that the action for amparo was inadmissible."
5.8 Regarding civil liability, the State reports that the camper, valued at 2.5 million pesetas, was offered at a public auction but remained unsold. It was then handed over to the owner of the bar as compensation for the damage caused in the fire.
5.9 The State party notes:
"That the accused were granted a conditional release on 14 July 1988 and, following the judgment of the Supreme Court in which the appeal was dismissed, in violation of the conditions of their provisional release, the Hill brothers left Spain, and that, 'according to the statement by the British Vice-Consul, the brothers, once they got out of prison in July or August last year, left Spain and were not residing with their parents, and were currently believed to be in Portugal'. On 1 March 1989, the Provincial High Court of Valencia therefore declared Michael John and Brian Anthony Hill to be in contempt and ordered that they be sought and taken into custody."
Authors' comments
6.1 In their comments of 6 July 1993, the authors maintain that they are innocent and attribute their conviction to a series of misunderstandings during the trial caused by the lack of proper interpretation.
6.2 The authors reiterate that their rights were violated, in particular the right to a fair trial with guarantees of adequate time and facilities for the preparation of the defence, and the right to defend oneself in person and to examine witnesses. The authors reject the State party's accusation that they fled Spain as soon as they were released, explaining that they fulfilled the conditions of their provisional release and then returned to their family in the United Kingdom, having informed the authorities of their address there and of their intention to pursue the case in order to prove their innocence. The Committee's file shows that the Hill brothers did in fact write to the Constitutional Court in February 1990 to enquire about the outcome of their appeal.
6.3 The authors reject the presumption of guilt arrived at by the State party on the basis of an Interpol report on Michael Hill. Firstly, the report refers to events which took place in the United Kingdom more than 14 years ago and to a previous criminal record which had been expunged and was therefore not admissible in court. The use of the record by the Public Prosecutor's Office was unfair and prejudicial and the authors had no opportunity to refute it at the oral proceedings, which lasted barely 40 minutes. They emphasize that Michael Hill was denied the right to defend himself in person against the presumption of guilt and that, furthermore, his legal aid lawyer failed to follow his instructions. For those reasons, no defence was put forward on the matter of the prejudicial presumption of guilt. Furthermore, the information which the legal aid lawyer failed to refute also had a very harmful effect on Brian Hill, who had no previous criminal record in the United Kingdom.
Committee's decision on admissibility
7.1 Before examining a complaint contained in a communication, the Human Rights Committee decides, pursuant to rule 87 of the its rules of procedure, whether or not it is admissible under the Optional Protocol to the Covenant.
7.2 The Committee ascertained, as required under article 5, subparagraph 2 (a), of the Optional Protocol, that the matter had not been submitted under another procedure of international investigation or settlement. Taking into account all the information submitted by the parties, the Committee concluded that the domestic remedies referred to in article 5, subparagraph 2 (b), of the Optional Protocol had been exhausted.
7.3 The Committee considered the statement by the State party arguing that the Hill brothers had abused the right of submission, but concluded that only an examination of the merits of the case could clarify whether the Hill brothers had abused that right and whether the State party had violated the Covenant.
7.4 The Committee considered that the allegations made under article 14 had been sufficiently substantiated for purposes of admissibility and, accordingly, should be examined on the merits. The facts submitted to the Committee also appeared to raise questions regarding articles 9 and 10 (see paras. 2.3 and 2.7 above).
8. On 22 March 1995, the Human Rights Committee found the communication admissible.
Observations by the State party
9.1 In its statement dated 9 November 1995, the State party refers to its previous observations and to the documents already submitted, and reiterates that the complaint is unfounded. In its submission dated 30 May 1996, the State party contends that the communication should be declared inadmissible on account of abuse of the right of submission. It argues that the authors were placed on provisional liberty on 14 July 1988 on condition that they would appear before the Audiencia Provincial de Valencia on the first of every month. Instead of doing so, the Hill brothers left Spain and returned to England. Because of their breach of the conditions of release and violation of Spanish law, they are estopped from claiming that Spain has violated its commitments under international law.
9.2 As to the merits of the communication, the State party explains that the interpreter was not a person selected ad hoc by the local police, but a person designated by the Instituto Nacional de Empleo (INEM) upon agreement with the Ministry of Interior. Interpreters must have satisfied professional criteria before being employed by INEM. The records indicate that Isabel Pascual was properly designated interpreter for the Hill brothers in Gandía and include a statement from INEM with respect to the assignment of Ms. Pascual and Ms. Rieta.
9.3 As to the authors' desire to communicate with the British Consulate, the State party contends that the documents reveal that the Consulate was duly informed of their detention.
9.4 As to the identification parade, the State party rejects the authors' description of having been brought before the witness in handcuffs and next to uniformed policemen. The State party affirms that the procedural guarantees provided for in articles 368 and 369 of the Code of Criminal Procedure were duly observed. Moreover, the identification parade took place in the presence of the authors' attorney, Salvador Vicente Martínez Ferrer, whom the State party contacted and who, according to the State party's submission, rejects the authors' description of the events. A document sent by the State shows that the two other persons in the identification parade were "inspectores" and formed part of the Superior Police Corps, where no uniform is worn.
9.5 The State party rejects the allegation that the Hill brothers had been kept for 10 days without food and encloses a statement from the chief of the Gandía Police and receipts allegedly signed by the Hill brothers.
9.6 As to the duration of the criminal proceedings up to the oral hearing: from 16 July to 24 October 1985, investigations, including into Michael Hill's prior criminal record, were carried out. On 26 November, the authors were notified and they designated their attorney. On 4 December 1985, the file was referred by the Gandía Court to the Audiencia Provincial de Valencia. On 28 December, the case was referred to the State attorney, who presented his report and conclusions on 3 March 1986. On 10 September, the Court fixed the date for oral hearing on 3 November. On 22 October 1986, defence counsel withdrew. On 28 October, the Hill brothers asked for a legal aid lawyer. On 30 October, Mr. Carbonell Serrano was appointed as legal aid lawyer. On 3 and 17 November, oral hearings took place. The State party concludes that this chronology indicates that there was no undue delay on the part of the Spanish authorities.
9.7 The State party submits that the duration of 16 months of pretrial detention was not unusual. It was justified in view of the complexities of the case; bail was not granted because of the danger that the authors would leave Spanish territory, which they did as soon as release was granted.
9.8 The State party contends that the authors had sufficient time and facilities to prepare their defence. First they had counsel of their own choosing, and when they dismissed him, legal aid counsel was appointed and the hearing postponed to allow the new counsel to familiarize himself with the case. It is not true that Mr. Carbonell, the legal aid attorney, demanded 500,000 pesetas from the authors before trial. He did demand 50,000 pesetas for the case that they would want to appeal to the Supreme Court, an amount that is altogether reasonable for counsel of one's choosing. The authors, however, did not use his services, but availed themselves of the services of two other legal aid lawyers. The State party denies the authors' claim that the documentation was not made available to them in English translation.
9.9 As to the oral hearing, it is stated that Ms. Rieta was a well qualified interpreter and that the authors' only witness, Mr. Pellicer, affirmed having recognized them and their pickup truck.
9.10 As to Michael Hill's right to defend himself, the records do not reveal that Michael Hill had demanded the right to defend himself and that this right was denied by the court. Moreover, Spanish law recognizes, pursuant to the Covenant and the European Convention, the right to defend oneself. Such defence should take place by competent counsel, which is paid by the State when necessary. Spain's reservation to articles 5 and 6 of the European Convention concern only a restriction of this right with respect of members of the Armed Forces.
9.11 As to the presumption of innocence, the authors admit their presence in the club and the number of beers consumed. In view of the evidence given by an eyewitness, there is no basis to claim that they were deemed guilty without evidence.
Authors' comments
10.1 By letters of 8 January and 5 July 1996 the authors contest the State party's arguments on admissibility and merits. As to the alleged abuse of the right of submission, the authors claim that the State party, in view of its manifold violations of their rights in the course of their detention and trial, does not come to the Committee with clean hands. They contend that they acted properly in leaving the territory of Spain, because they feared further violations of their rights. Moreover, they did not immediately leave Spanish territory upon their release from prison on 14 July 1988 but five weeks later, on 17 August, with no objection from the British Consulate at Alicante. They refer to the transcript of their visit to the Consulate on 12 August 1988 in order to obtain a temporary passport. Moreover, the State party had made no provision for them to remain in Spain after release and all the release documentation was in Spanish.
10.2 As to the interpreter, they maintain their contention that Ms. Isabel Pascual made crucial mistakes of interpretation, which ultimately led to their conviction. They have no criticism of the other interpreter, Ms. Rieta, other than the mistake concerning to the fuel used by their truck.
10.3 As to the identification parade, they reaffirm their allegation contained in their submission of 6 July 1993.
10.4 They reaffirm that they did not receive any food or drink for a period of five days and very little thereafter, because the allocation of funds specifically for this purpose were misappropriated. They point out that the State party's list does not refer to the first five days, when they allege to have been totally deprived of subsistence. The lists presented by the State refer to 11 days, and only two of these, 21 and 24 July, show their signature.
10.5 As to the necessary time and facilities to prepare their defence, the authors maintain that they spent but two brief periods with their legal aid attorney, Mr. Carbonell. They maintain their allegation that Mr. Carbonell demanded half a million pesetas from their parents on 1 November 1986.
10.6 Concerning the right of Michael Hill to defend himself, it is said that the letter from the Pro Consul at Alicante, dated 12 March 1987, substantiates their claim that the right under the Spanish Constitution to defend oneself in court was emphatically denied by the judiciary on two occasions. Michael Hill made his desire to defend himself clear well in advance of the Court proceedings via the official interpreter, Ms. Rieta.
10.7 With respect to the length of the hearings, the authors reiterate that the first hearing of 3 November lasted only 20 minutes, in which period the question as to what fuel was used by their vehicle was raised. There was no examination of the defendants or of the witness on this occasion. The second hearing on 17 November lasted 35 minutes, mainly devoted to formalities. Thus, the authors challenge the State party's assertion that the Court could properly examine both defendants and one witness, bearing in mind that every word had to be translated.
10.8 As to the presumption of innocence, they claim that, not only at trial, but throughout the proceedings, they were deemed to be guilty, although from the outset they always affirmed their innocence.
Examination of the merits
11. The Human Rights Committee has examined this communication in the light of all the information made available to it by the parties, as provided for in article 5, paragraph 1, of the Optional Protocol.
12.1 With respect to the State party's allegation that the case should be declared inadmissible on account of abuse of the right of submission, because the authors had breached their conditions of release in violation of the Spanish law, the Committee considers that an author does not forfeit his right to submit a complaint under the Optional Protocol simply by leaving the jurisdiction of the State party against which the complaint is made, in breach of the conditions of his release.
12.2 With regard to the authors' allegations of violations of article 9 of the Covenant, the Committee considers that the authors' arrest was not illegal or arbitrary. Article 9, paragraph 2, of the Covenant requires that anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. The authors specifically allege that seven and eight hours, respectively, elapsed before they were informed of the reason for their arrest, and complain that they did not understand the charges because of the lack of a competent interpreter. The documents submitted by the State party show that police formalities were suspended from 6 a.m. until 9 a.m., when the interpreter arrived, so that the accused could be duly informed in the presence of legal counsel. Furthermore, from the documents sent by the State it appears that the interpreter was not an ad hoc interpreter but an official interpreter appointed according to rules that should ensure her competence. In these circumstances, the Committee finds that the facts before it do not reveal a violation of article 9, paragraph 2, of the Covenant.
12.3 As for article 9, paragraph 3, of the Covenant, which stipulates that it shall not be the general rule that persons awaiting trial shall be detained in custody, the authors complain that they were not granted bail and that, because they could not return to the United Kingdom, their construction firm was declared bankrupt. The Committee reaffirms its prior jurisprudence that pre-trial detention should be the exception and that bail should be granted, except in situations where the likelihood exists that the accused would abscond or destroy evidence, influence witnesses or flee from the jurisdiction of the State party. The mere fact that the accused is a foreigner does not of itself imply that he may be held in detention pending trial. The State party has indeed argued that there was a well-founded concern that the authors would leave Spanish territory if released on bail. However, it has provided no information on what this concern was based and why it could not be addressed by setting an appropriate sum of bail and other conditions of release. The mere conjecture of a State party that a foreigner might leave its jurisdiction if released on bail does not justify an exception to the rule laid down in article 9, paragraph 3, of the Covenant. In these circumstances, the Committee finds that this right in respect of the authors has been violated.
12.4 The authors were arrested on 15 July 1985 and formally charged on 19 July 1985. Their trial did not start until November 1986, and their appeal was not disposed of until July 1988. Only a minor part of this delay can be attributed to the authors' decision to change their lawyers. The State party has argued that the delay was due "to the complexities of the case" but has provided no information showing the nature of the alleged complexities. Having examined all the information available to it, the Committee fails to see in which respect this case could be regarded as complex. The sole witness was the eyewitness who gave evidence at the hearing in July 1985, and there is no indication that any further investigation was required after that hearing was completed. In these circumstances, the Committee finds that the State party violated the authors' right, under article 14, paragraph 3 (c), to be tried without undue delay.
13. With respect to the authors' allegations regarding their treatment during detention, particularly during the first 10 days when they were in police custody (para. 2.7), the Committee notes that the information and documents submitted by the State party do not refute the authors' claim that they were not given any food during the first five days of police detention. The Committee concludes that such treatment amounts to a violation of article 10 of the Covenant.
14.1 With regard to the right of everyone charged with a criminal offence to
have adequate time and facilities for the preparation of his defence, the
authors have stated that they had little time with their legal aid lawyer and
that when the latter visited them for only 20 minutes two days before the trial,
he did not have the case file or any paper for taking notes. The Committee
notes that the State party contests this allegation and points out that the
authors had counsel of their own choosing. Moreover, in order to allow the
legal aid lawyer to prepare the case, the hearing was adjourned. The authors
have also alleged that even though they do not speak Spanish, the State party
failed to provide them with translations of many documents that would have
helped them to better understand the charges against them and to organize their
defence. The Committee refers to its prior jurisprudence
and recalls that the
right to fair trial does not entail that an accused who does not understand the
language used in Court, has the right to be furnished with translations of all
relevant documents in a criminal investigation, provided that the relevant
documents are made available to his counsel. Based on the records, the
Committee finds that the facts do not reveal a violation of article 14,
subparagraph 3 (b), of the Covenant.
14.2 The Committee recalls that Michael Hill insists that he wanted to defend himself, through an interpreter, and that court denied this request. The State party has answered that the records of the hearing do not show such a request, and that Spain recognized the rights of "auto defence" pursuant to the Covenant and the European Convention of Human Rights, but that "such defence should take place by competent counsel, which is paid by the State when necessary", thereby conceding that its legislation does not allow an accused person to defend himself in person, as provided for under the Covenant. The Committee accordingly concludes that Michael Hill's right to defend himself was not respected, contrary to article 14, subparagraph 3 (d), of the Covenant.
14.3 The Committee further observes that in accordance with article 876 of the Spanish Code of Criminal Procedure, the authors' appeal was not effectively considered by the Court of Appeal, since no lawyer was available to submit any grounds of appeal. Consequently, the authors' right to have their conviction and sentence reviewed, as required by the Covenant, was denied to them, contrary to article 14, paragraph 5, of the Covenant.
14.4 Given the Committee's conclusion that the authors' right to a fair trial under article 14 was violated, it need not deal with their specific allegations relating to the adequacy of their representation by a legal aid lawyer, the irregularities of the identification parade, the competence of the interpreters and the violation of the presumption of innocence.
15. The Human Rights Committee, acting in accordance with article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, finds that the facts before it reveal a violation of articles 9, paragraph 3; 10 and 14, subparagraph 3 (c) and paragraph 5, of the Covenant, in respect of both Michael and Brian Hill and of article 14, subparagraph 3 (d), in respect of Michael Hill only.
16. Pursuant to article 2, subparagraph 3 (a), of the Covenant, the authors are entitled to an effective remedy, entailing compensation.
17. Bearing in mind that by becoming a party to the Optional Protocol, the State has recognized the Committee's competence 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 guarantee 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 cases where a violation has been established, the Committee requests the State party to provide, within 90 days, information on the measures taken to give effect to the Committee's Views.
APPENDIX
A. Individual opinion by Committee member Nisuke Ando
[Original: English]
I concur with the Committee's Views with respect to article 14. However, I am unable to concur with the Committee's finding with respect to article 10.
According to the authors, they were held in police custody for 10 days, for five of which they were allegedly left without food and with only warm water to drink (see para. 2.7). The State party rejects this allegation and encloses a statement from the chief of Gandía Police as well as receipts allegedly signed by the authors (see para. 9.5). The authors assert that the allocation of funds specifically for food was misappropriated and that the State party's lists do not refer to the first five days, when they allege to have been totally deprived of subsistence (see para. 10.4).
Nevertheless, as the Committee itself recognizes (see para. 10.4), the lists refer to 11 days from 16 to 26 July 1985 and, contrary to the Committee's finding that the lists show the authors' signatures only for 21 and 24 July, the authors' names with signatures appear on the lists for all 11 days. All the signatures do not seem exactly identical and it may be that the warders in charge of food supply may have signed on the authors' behalf.
In any event, the authors have not presented any evidence to refute the existence and content of the lists: that they were left without food for the first five days of their police detention remains a mere allegation. Under the circumstances, I am unable to concur with the Committee's finding that the State party has not provided sufficient elements to refute the authors' allegation and that it is in violation of article 10 of the Covenant (see para. 13).
B. Individual opinion by Committee member Eckart Klein
[Original: English]
I do not share the opinion expressed in paragraph 14.4 of the Views that the Committee need not deal with the authors' specific allegations relating to the adequacy of their representation by a legal aid lawyer, the irregularities of the identification parade, the competence of the court-appointed interpreters and the violation of the presumption of innocence.
The fact that the Committee found a violation of the authors' right to a fair trial under article 14 regarding certain aspects (article 14, subparagraphs 3 (c) and (d) and paragraph 5, of the Covenant) does not release the Committee from its duty to examine whether other alleged violations of the rights enshrined in article 14 of the Covenant have occurred. According to the authors, violations of article 14, paragraphs 1, 2 and subparagraph 3 (f), should have been considered.
The Committee is not in a position analogous to that of a national court which may and will, for grounds of time constraints, restrict itself to the most evident reasons that by themselves justify the nullification of the measure attacked. The authority of the Committee's Views rests, to a great extent, on a diligent examination of all allegations made by the authors and on a convincing ratio decidendi. The influence of the Committee's Views on State party behaviour will be strengthened only if all aspects of the matter have been thoroughly examined and all necessary conclusions have been argued clearly.
Apart from this objection of a general nature, I do not think that article 14 of the Covenant should be seen just as an umbrella provision of the right to a fair trial. It is true that all provisions of the article are connected with the issue, but the express formulation of the different aspects of the right to a fair trial is founded on many varied good reasons, based on historical experience. The Committee should not encourage any view that some rights enshrined in article 14 of the Covenant are less important than others.
I do not think that the facts presented by the authors in this case reveal a violation of Covenant rights beyond the findings of the Committee, but I feel obliged to make clear my own point of view on this matter of principle.
C. Communication No. 528/1993; Michael Steadman v. Jamaica
(Views adopted on 2 April 1997, fifty-ninth session)
Submitted by: Michael Steadman
[represented by Mr. T. Hart]
Victim: The author
State party: Jamaica
Date of communication: 10 November 1992 (initial submission)
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 2 April 1997,
Having concluded its consideration of Communication No. 528/1993 submitted to the Human Rights Committee on behalf of Mr. Michael Steadman 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 the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The author of the communication is Michael Steadman, a Jamaican citizen, at the time of submission awaiting execution at St. Catherine District Prison, Spanish Town. The author claims to be the victim of a violation by Jamaica of articles 6, 9, 10 and 14 of the International Covenant on Civil and Political Rights. He is represented by Mr. T. Hart.
Facts as submitted by the author
2.1 On 12 December 1985, the author was convicted of the murder, on 26 June 1983, of one Sylvester Morgan and sentenced to death by the Home Circuit Court of Kingston. His appeal was refused on 19 February 1988 by the Jamaican Court of Appeal. The Judicial Committee of the Privy Council refused special leave to appeal on 21 March 1990. The author's death sentence was commuted in February 1993.
2.2 The prosecution's case against the author was that, on 26 June 1983, he, together with his co-accused Carlton Collins and two others, entered a yard belonging to one Charlie Chaplin, where Collins shot Sylvester Morgan in the head, as a result of which the latter died. It was alleged that the killing arose out of a joint enterprise between the author and his co-accused. When the men were entering the yard, they allegedly said: "watch it, watch it, mek me shoot the boy". During the trial the author was identified by two witnesses, 13 and 14 years old, as one of the men participating in the killing. They testified, however, that they had not seen the author firing a shot himself, although he had been carrying a gun. One of the witnesses stated that, after the shot was fired, the author asked his co-accused: "You sure you shot the boy?". Four other witnesses testified having seen the author and three others running away after the incident while carrying guns.
2.3 The author gave a sworn statement to the effect that he had been at work at the time of the killing. No witnesses were called to support his alibi, however, and during cross-examination the author admitted that he had arrived home at 7.20 p.m. that day, while the murder allegedly had been committed around 7 p.m. The author further alleged that, after his arrest, the police officer had threatened him and fired shots over his head.
Complaint
3.1 The author states that he was arrested on 22 July 1983 and charged with murder on 30 July 1983, after having been detained for eight days without recourse to either a legal adviser, a member of his family or a friend. Preliminary examinations took place in August 1983 and September 1984. The author was kept in pre-trial detention until the start of the trial in December 1985, some 28 months later. According to the author the delay in bringing him to trial was caused by inadequacies in the Jamaican legal system, amounting to a violation of article 9, paragraph 3, and article 14, subparagraph 3 (c), of the Covenant.
3.2 The author further claims that he was severely prejudiced by this delay, since the witnesses no longer had the incident fresh in their minds and had been exposed to local gossip and publicity, because of which they had lost their impartiality. He also claims that, because of the lapse of time, potential defence witnesses could no longer be traced. In this connection, the author points out that after the preliminary examination in August 1983, he did not meet with his counsel until the day of the trial.
3.3 The author further alleges that he is a victim of a violation of article 14, subparagraphs 3 (b) and (d), since he was denied adequate time and facilities to prepare his defence. In this context, the author claims that he was deprived of adequate legal representation, both at his trial and at his appeal to the Court of Appeal of Jamaica. He submits that the legal aid counsel, who was originally assigned to represent him, failed to appear at the preliminary examination, and that he was then represented by a junior counsel. The author claims that he had no opportunity to instruct his counsel and that this counsel was only present at the first preliminary examination. Following the preliminary examination, the author had no contact with his legal representative until the day of the trial. He therefore alleges that he was denied the opportunity to prepare his defence, whereas the Prosecution had some 28 months to prepare its case.
3.4 As regards the appeal hearing, the author submits that he was represented by another counsel who had not previously been involved in the case. He alleges that this counsel never communicated with him before the hearing and that he, therefore, was not able to give him instructions as to the grounds of appeal. During the hearing, counsel submitted that there were no grounds to appeal the conviction, according to the author thereby effectively withdrawing his appeal without his consent. Counsel only addressed the Court on the matter of sentence, claiming that both the author and the co-accused had been under 18 years of age at the time of the killing and should therefore not be sentenced to death. The Appeal Court, however, found that research by the Registrar General had proven that the author was born on 31 December 1964 and that he was over the age of 18 years at the time of the murder. As the Prosecution failed to prove that the author's co-accused was over the age of 18 at the time of the offence, his sentence was varied to imprisonment during Her Majesty's pleasure.
3.5 The author further alleges that he was denied a fair hearing in violation of article 14, paragraph 1, of the Covenant, because the judge failed to direct the jury properly as to identification and manslaughter, which were central issues during the trial. In this connection, the author points out that the witnesses gave contradictory evidence with regard to the exact hour of the incident, some claiming that it happened around 7 p.m., others around 8 p.m. It is stated that, while it would still have been light at 7 p.m., it would have been dark at 8 p.m. The author claims that the darkness would have affected proper identification of the perpetrators and that the judge should have alerted the jury to the issue as to whether it was in fact dark, which he failed to do. He further alleges that the judge failed to bring to the attention of the jury certain other inconsistencies in the evidence and to warn the jury properly with regard to the need for caution in relying on identification evidence.
3.6 The author also claims that the judge did not direct the jury properly as regards the issue of joint enterprise in that he did not advert to the possibility that the author's co-accused, who was alleged to have fired the only shot, might have gone beyond what was tacitly agreed as part of the joint enterprise. In this connection, the author points out that the witnesses' evidence showed that the four men were looking for a Derrick Morgan, not for the deceased, and that the jury had to decide whether the author had indeed the intention to kill or do serious harm to the deceased. The author claims that it was open to the jury to find him guilty of manslaughter if he started out on an enterprise which envisaged some degree of violence and his co-accused went beyond the scope of the enterprise. However the judge allegedly instructed the jury that the author was to be convicted of murder or acquitted.
3.7 The author also alleges that he is a victim of a violation of article 6,
paragraph 2, of the Covenant, since he has been sentenced to death after a trial
during which the provisions of the Covenant were violated. In this connection,
the author refers to the Committee's Views in Communication No. 250/1987.
3.8 The author finally alleges that he is a victim of a violation by Jamaica of article 10 of the Covenant, since the State party fails to provide him with sufficient food, medical or dental care, and basic necessities for personal hygiene. To support his claims, the author encloses copy of a report by Professor W. E. Hellerstein, based on a study of the conditions in Jamaican prisons, conducted in January 1990.
State party's observations
4. By submission of 19 May 1994, the State party argues that the communication is inadmissible for failure to exhaust domestic remedies. In this context, the State party argues that it is open to the author to seek redress for the alleged violations of his rights by way of a constitutional motion to the Supreme Court.
5. In a letter, dated 6 February 1995, counsel for the author refers to his initial communication and states that he has no further comments to make.
Committee's admissibility decision
6.1 At its fifty-third session, the Committee considered the admissibility of the communication.
6.2 The Committee ascertained, as required under article 5, subparagraph 2 (a), of the Optional Protocol, that the same matter was not being examined under another procedure of international investigation or settlement.
6.3 The Committee took note of the State party's claim that the communication was inadmissible for failure to exhaust domestic remedies. The Committee recalled its prior jurisprudence and considered that, in the absence of legal aid, a constitutional motion did not, in the circumstances of the 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, subparagraph 2 (b), from considering the communication.
6.4 The Committee noted that part of the author's allegations related to the evaluation of evidence and to the instructions given by the judge to the jury. The Committee referred to its prior jurisprudence and reiterated that it is generally for the appellate courts of States parties to the Covenant to evaluate facts and evidence in a particular case. Similarly, it was not for the Committee to review specific instructions to the jury by the trial judge, unless it could be ascertained that the instructions to the jury were clearly arbitrary or amounted to a denial of justice. The material before the Committee did not show that the trial judge's instructions or the conduct of the trial suffered from such defects. Accordingly, this part of the communication was inadmissible as incompatible with the provisions of the Covenant, pursuant to article 3 of the Optional Protocol.
6.5 The Committee noted that the author, in support of his claim under article 10 of the Covenant, only referred to a general report about conditions in Jamaican prisons. The Committee considered that, in the absence of any information concerning the specific situation of the author, this claim had not been substantiated for purposes of admissibility. This part of the communication was therefore inadmissible under article 2 of the Optional Protocol.
6.6 The Committee considered that the author and his counsel had sufficiently substantiated, for purposes of admissibility, that the delay in bringing the author to trial and his continued detention throughout this period might raise issues under article 9, paragraph 3, and article 14, subparagraph 3 (c), of the Covenant, which needed to be examined on the merits. The Committee also considered that the author's claim that he was denied time and facilities to prepare his defence and that his counsel effectively abandoned his appeal might raise issues under article 14, subparagraphs 3 (b) and (d), which needed to be examined on the merits.
7. Accordingly, the Human Rights Committee decided that the communication was admissible in so far as it might raise issues under article 9, paragraph 3, and article 14, subparagraphs 3 (b), (c) and (d), juncto article 6, paragraph 2, of the Covenant.
State party's observations on the merits of the communication
8.1 By submission of 25 September 1996, the State party argues that the delay of 28 months between the author's arrest and the beginning of the trial against him does not constitute a violation of article 9, paragraph 3, and article 14, subparagraph 3 (c), because two preliminary hearings were held during that time. The State party submits that there is no basis for the assertion that this delay was undue or prejudicial to the author and points out that witnesses could have refreshed their memory from their own statements given shortly after the incident occurred.
8.2 The State party further is of the opinion that it cannot be held accountable for the manner in which counsel conducts a trial or argues an appeal.
Issues and proceedings before the Committee
9. 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.
10.1 The author has claimed that the delay in bringing him to trial, a period of more than 27 months (from his arrest on 22 July 1983 to the beginning of the trial on 9 December 1985) during which he remained in detention, is in violation of article 9, paragraph 3, and article 14, subparagraph 3 (c). The Committee notes that the author has stated that the preliminary enquiry against him was held in August 1983 and that the State party has not provided any information as to why it was adjourned or why the trial did not start until 26 months later. In the absence of any specific grounds from the State party as to why the trial only started 26 months after the adjournment of the preliminary enquiry the Committee is of the opinion that the delay in the instant case was contrary to the State party's obligation to bring an accused to trial without undue delay.
10.2 As regards the author's claim that he did not have adequate time and facilities for the preparation of his defence, the Committee notes that the information before it shows that the author was represented at trial by the same counsel who had represented him at the preliminary examination. The Committee further notes that neither the author nor counsel ever requested the Court for more time in the preparation of the defence. In the circumstances, the Committee finds that the facts before it do not show a violation of article 14, subparagraph 3 (b), of the Covenant in respect to the author's trial.
10.3 The author has further complained that counsel who was assigned to represent him on appeal did not contact him before the appeal and that he did not advance any grounds for appeal against conviction. It appears from the judgment of the Court of Appeal that the author's counsel for the appeal (who had not represented him at the trial) conceded at the hearing that there were no arguments that he could put forward to affect the conviction. The Committee recalls that, while article 14, subparagraph 3 (d), does not entitle the accused to choose counsel provided to him free of charge, measures must be taken to ensure that counsel, once assigned, provides effective representation in the interests of justice. This includes consulting with, and informing, the accused if he intends to withdraw an appeal or to argue before the appellate instances that the appeal has no merit. While it is not for the Committee to question counsel's professional judgment that there was no merit in the appeal against conviction, 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, so that he can consider any other remaining options open to him. In the circumstances, the Committee concludes that the author was not effectively represented on appeal, in violation of article 14, subparagraphs 3 (b) and (d).
10.4 The Committee is of the opinion that the imposition of a sentence of death
upon conclusion of a trial in which the provisions of the Covenant have not been
respected constitutes, if no further appeal against the sentence is possible, a
violation of article 6 of the Covenant. As the Committee noted in its General
Comment 6(16), the provision that a sentence of death may be imposed only in
accordance with the law and not contrary to the provisions of the Covenant
implies that "the procedural guarantees therein prescribed must be observed,
including the right to a fair hearing by an independent tribunal, the
presumption of innocence, the minimum guarantees for the defence, and the right
to review of conviction and sentence by a higher tribunal".
In the present
case, since the final sentence of death was passed without effective
representation for the author 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 9, paragraph 3, and article 14, subparagraphs 3 (b), (c) and (d), and consequently of article 6, paragraph 2, of the International Covenant on Civil and Political Rights.
12. Under article 2, subparagraph 3 (a), of the Covenant, Mr. Steadman is entitled to an effective remedy. The Committee is of the opinion that in the circumstances of the case, the author is entitled to an appropriate remedy. 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.
D. Communication No. 529/1993; Hervin Edwards v. Jamaica
(Views adopted on 28 July 1997, sixtieth session)
Submitted by: Hervin Edwards
(represented by Mr. Saul Lehrfreund)
Victim: The author
State party: Jamaica
Date of communication: 19 January 1993 (initial submission)
Date of decision on admissibility: 31 October 1995
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 28 July 1997,
Having concluded its consideration of Communication No. 529/1993 submitted to the Human Rights Committee by Mr. Hervin Edwards, 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 the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The author of the communication is Hervin Edwards, a Jamaican citizen, who at the time of submission of the communication was awaiting execution at St. Catherine District Prison and is currently serving a life sentence at the General Penitentiary in Kingston, Jamaica. He claims to be a victim of violations by Jamaica of article 7 and article 14, subparagraph 3 (b), juncto article 6, paragraph 2, of the International Covenant on Civil and Political Rights. He is represented by counsel, Mr. Saul Lehrfreund, of the law firm of Simons Muirhead and Burton in London.
Facts as submitted by the author
2.1 The author was arrested on 31 December 1983 and charged with the murder, on 29 December 1983, of his wife. On 12 June 1984, he was found guilty as charged and sentenced to death by the Manchester Circuit Court. The Court of Appeal dismissed his appeal on 22 January 1986. The murder for which the author stands convicted was initially classified as a capital murder under the Offences Against the Person (Amendment) Act of 1992. On review, the Court of Appeal reclassified the author's offence as non-capital on 28 March 1995.
2.2 The first prosecution witness, a trainee policeman, testified that on 29 December 1983, at around 1.15 p.m., he saw the author walking with his son and wife, from whom he was separated at that time. He saw the author push his wife to the ground, take out a machete, and strike her four or five times in the region of the chest and neck, as a result of which she died. On the issue of identification, he testified that he had known the author for seven years, that during the attack he had shouted at the author who then looked up, and that, after having struck his wife, the author ran towards him before disappearing into a side road. The author's son followed the author, but was stopped by the policeman.
2.3 The second prosecution witness, a police officer who had known the author for 15 years, stated that in the morning of 29 December 1983, he had gone to the author's home, following a report that the author had taken his child from his wife's custody. He saw the author, his wife and their child leave together, but later saw the wife without the child. He then told the author to return the child to his wife. Another witness for the prosecution, the arresting officer, testified that after being cautioned, the author said: "She a tell me a hot word and me got vex and me chop her".
2.4 In an unsworn statement from the dock, the author contended that on 29 December 1983, he had been working all day on his allotment. No evidence was given in support of his alibi. He further stated that he was wearing clothes different from those worn by the attacker, and that he had instructed the police to find the clothes he had been wearing on the day of the crime.
2.5 The author was represented by a privately retained lawyer during the preliminary hearing and on trial, and by another privately retained lawyer on appeal. The application for leave to appeal against conviction and sentence was based on the grounds that there was insufficient evidence to warrant a conviction, but at the hearing of the appeal, the author's lawyer conceded to the Court that he was unable to find any grounds on which to argue the appeal.
2.6 As to the requirement of exhaustion of domestic remedies, leading counsel in London advised on 7 November 1990 that there were no reasonable prospects of success for a petition for special leave to appeal to the Judicial Committee of the Privy Council. Leading counsel referred in particular to the strong identification evidence of the first prosecution witness, to the fact that the judge's summing up to the jury was in accordance with the relevant rules, and that the author's alibi was seriously undermined by the evidence of the second prosecution witness. It is submitted that a petition for special leave to appeal to the Judicial Committee of the Privy Council would not constitute an available and effective remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.
Complaint
3.1 The author submits that he was not adequately represented on trial. He submits that he saw his lawyer only fifteen minutes prior to the preliminary hearing, and that he did not see her again until the day of the trial. He complains that she did not ask him for instructions and that she should have requested an adjournment in order to properly prepare the defence. Furthermore, she did not contact any witnesses to testify on his behalf and failed to cross-examine the prosecution witnesses on essential issues, such as the clothes worn by the attacker and the confession statement he allegedly made to the arresting officer. The inadequate conduct of the author's defence counsel is said to amount to a violation of article 14, subparagraph 3 (b), of the Covenant. It is further submitted that, as a result, article 6, paragraph 2, has also been violated, since a sentence of death was passed upon the author after a trial in which the provisions of the Covenant have not been respected.
3.2 The author points out he was sentenced to death on 12 June 1984 and argues that the execution of a sentence of death after such a long period would, because of the extreme anguish caused by the delay, amount to cruel, inhuman and degrading treatment, within the meaning of article 7 of the Covenant.
3.3 The author submits that he has been subjected to the deplorable conditions of detention at St. Catherine District Prison. In this context, he submits that he has spent the past 10 years alone in a cell measuring 6 feet by 14 feet, being let out for three and a half hours a day. He has no recreational facilities and receives no books.
3.4 Counsel concedes that the author has not applied to the Supreme (Constitutional) Court of Jamaica for redress. He argues that a constitutional motion in the Supreme Court would inevitably fail, in light of the precedent set by the Judicial Committee of the Privy Council in the cases of DPP v. Nasralla and Riley and others v. Attorney General of Jamaica, where it was held that the Jamaican constitution was intended to prevent the enactment of unjust laws and not unjust treatment under the law. Since the author claims unjust treatment under the law, and not that post constitutional laws are unconstitutional, a constitutional motion would not be an effective remedy in his case. Counsel further argues that, if it were accepted that a constitutional motion is a final remedy to be exhausted, it would not be available to the author because of his lack of funds, the absence of legal aid for the purpose and because of the unwillingness of Jamaican lawyers to represent applicants on a pro bono basis. In support of his contention, counsel states that the author informed him that, although he had a privately retained lawyer on trial and appeal, it was his family who paid counsel's fees and that he is thus not in a position to privately retain a lawyer for the purpose of filing a constitutional motion.
State party's observations
4. The State party notes that on 28 March 1995, the Court of Appeal reviewed the author's case and reclassified the offence as non-capital murder. His death sentence was changed by law to one of life imprisonment. The author is to serve seven more years of detention, counted from the date of reclassification, before he becomes eligible for parole.
Committee's decision on admissibility
5.1 During its fifty-fifth session, the Committee considered the admissibility of the communication. It noted that in respect of the author's conviction, leading counsel in London had advised that a petition for special leave to appeal to the Judicial Committee of the Privy Council would have no prospect of success. Given leading counsel's uncontested opinion, the Committee considered that a petition for special leave to appeal to the Judicial Committee of the Privy Council was not an effective remedy which the author had to exhaust for purposes of the Optional Protocol.
5.2 With regard to the author's claim about inadequate legal representation, the Committee observed that the author's lawyer had been privately retained. It considered that the State party could not be held accountable for alleged errors made by a privately retained lawyer, unless it should have been manifest to the judge or the judicial authorities that the lawyer's behaviour was incompatible with the interests of justice. The Committee considered that, in the instant case, there had been no indication that the author's defence suffered from such defect. This part of the communication was incompatible with the provisions of the Covenant and was declared inadmissible under article 3 of the Optional Protocol.
5.3 With regard to the author's claim that the execution of a sentence of death
after more than ten years on death row would amount to cruel, inhuman and
degrading punishment, the Committee observed that following the reclassification
of his offence as non-capital the author was no longer under the threat of
execution. With regard to the question whether his lengthy stay on death row
could amount to a violation of article 7 of the Covenant, the Committee referred
to 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".
In the instant case, the
Committee wished to examine on the merits whether the length of Mr. Edward's
detention on death row was the result of delays imputable to the State party and
whether there were other compelling circumstances particular to the author,
including the conditions of his imprisonment, which would amount to a violation
of article 7 and article 10, paragraph 1, of the Covenant.
5.4 Accordingly, on 31 October 1995, the Human Rights Committee declared the communication admissible in as much as it appeared to raise issues under article 7 and article 10, paragraph 1, of the Covenant.
State party's submission on the merits and counsel's comments
6.1 By submission of 4 November 1996, the State party points out that the allegations relating to article 7 and article 10, paragraph 1, relate to the fact that the author spent 10 years on death row before his offence was reclassified as non-capital and a further two years until he was actually taken off death row after commutation of sentence.
6.2 The State party states that the author was arrested on 31 December 1983 and tried and convicted on 12 June 1984, a period of seven months. The author's appeal was dismissed on 22 January 1986, 18 months after conviction. It was not until four years later, 7 November 1990, that an opinion was obtained from leading counsel in London as to whether there were or not reasonable prospects of success for a petition to the Privy Council. The author's crime was reclassified as non-capital by the Offences against the Person (Amendment) Act of 1992. The State party categorically rejects that the time the author has spent on death row can be imputed to it.
7.1 In his comments, counsel contends that the issues arising under article 7 and article 10, paragraph 1, involve the responsibility of the State party, since it was the State party that kept the author on death row for over 11 years between 12 June 1984 and 10 July 1995. Counsel contends that this delay in carrying out the death sentence is attributable to the State party. In support of his claim, counsel refers the Privy Council judgment in Pratt [1994]2 AC 1, where their Lordships held that:
"a State that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve";
as well as to the individual opinions appended to the Committee's Views on Communication No. 588/1994 (Errol Johnson v. Jamaica), where it was held that:
"the physical and psychological treatment of the prisoner, his age and his health must be taken into consideration in order to evaluate the State's behaviour in relation of articles 7 and 10, paragraph 1".
Examination of the merits
8.1 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 for in article 5, paragraph 1, of the Optional Protocol.
8.2 The Committee must determine whether the length of time the author spent on
death row - 11 years and 1 month - amounts to a violation of article 7 and
article 10, paragraph 1, of the Covenant. Counsel has claimed a violation of
these provisions by reference to the length of time Mr. Edwards was confined to
death row. It remains the Committee's jurisprudence that detention on death row
for a specific time does not violate article 7 and article 10, paragraph 1, in
the absence of some further compelling circumstances. The Committee refers in
this context, to its Views on Communication No. 588/1994
in which it explained
and clarified its jurisprudence on this issue. In the Committee's opinion,
neither the author nor his counsel have shown the existence of further
compelling circumstances beyond the length of detention on death row. While a
period of detention on death row
of over eleven years is a matter of serious
concern, the Committee concludes that length of time does not per se constitute
a violation of article 7 and article 10, paragraph 1.
8.3 With regard to the conditions of detention at St. Catherine's District Prison, the Committee notes that in his original communication the author made specific allegations, in respect of the deplorable conditions of detention. He alleged that he was held for the period of 10 years alone in a cell measuring 6 feet by 14 feet, let out only for three and half hours a day, was provided with no recreational facilities and received no books. The State party made no attempt to refute these specific allegations. In these circumstances, the Committee takes the allegations as proven. It finds that holding a prisoner in such conditions of detention constitutes not only a violation of article 10, paragraph 1, but, because of the length of time in which the author was kept in these conditions, also a violation of article 7.
9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 7 and article 10, paragraph 1, of the Covenant.
10. In accordance with article 2, subparagraph 3 (a), of the Covenant, the State party is under an obligation to provide Mr. Edwards with an effective remedy, entailing compensation for the conditions of detentions suffered while on death row. The State party is under an obligation to ensure that similar violations do not occur in the future.
11. 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 in connection with the Committee's Views.
E Communication No. 533/1993; Harold Elahie v. Trinidad and Tobago
(Views adopted on 28 July 1997, sixtieth session
Submitted by: Harold Elahie
Victim: The author
State party: Trinidad and Tobago
Date of communication: 20 February 1992 (initial submission)
Date of decision on admissibility: 12 October 1995
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 28 July 1997,
Having concluded its consideration of Communication No. 533/1993 submitted to the Human Rights Committee by Mr. Harold Elahie, 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 the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The author of the communication is Harold Elahie, a Trinidadian citizen, currently serving four years' imprisonment with hard labour at the State Prison, Trinidad and Tobago. He claims to be a victim of violations of his human rights by Trinidad and Tobago, but does not invoke any provision of the International Covenant on Civil and Political Rights. The author's release was scheduled for 26 November 1996.
Facts as submitted by the author
2.1 The author was arrested on 6 July 1986 on charges of murder and several other offences (attempted murder, wounding with intent and shooting with intent). He was brought before a magistrate and remanded in custody. On 15 October 1986, the preliminary enquiry began; shortly afterwards, the author was told by his attorney that the magistrate had been suspended from his duties for alleged corruption.
2.2 The author was not brought before another magistrate until 22 February 1988. This magistrate continued the enquiry where it had been left in 1986. The author was committed to stand trial on 25 May 1988; it is not clear for which offence he was finally indicted. It appears from his letters that one of the indictments, dated 9 July 1990, was to be heard on 18 November 1990, but that prior to the hearing the defence filed a motion against this indictment on the ground that it was based on an illegal committal order. According to the author, the prosecution agreed and, on 19 March 1991, the judge quashed the indictment and ordered a new preliminary enquiry. The defence appealed the order, but it was apparently dismissed, since the author states: "[a] second enquiry was concluded against me by another magistrate".
2.3 A new trial was scheduled and on 25 March 1994, the author was sentenced to
four years' imprisonment with hard labour, after pleading guilty to a charge of
manslaughter.
2.4 The author adds that he pleaded guilty of manslaughter, on his lawyer's advice, in order to clarify his situation and expedite the proceedings. He further states that his lawyer advised him not to appeal the sentence, as appeal proceedings would take longer than the time he had left to serve.
Complaint
3.1 Although the author does not invoke specific provisions of the Covenant, it transpires that he claims to be a victim of violations of article 10, paragraph 1, of the Covenant, on account of the conditions of his detention, and of article 9, paragraph 3, and article 14, subparagraph 3 (c), because of undue delay in the proceedings, as there was a seven-year delay between his arrest and detention and his conviction in 1994. He complains that he was detained for seven years and eight months before going to trial.
3.2 The author further claims that he is subjected to inhuman and degrading treatment in prison. In this context, he submits that he is detained, together with four inmates, in a small cell. They have nothing but a "piece of sponge" and old newspapers to sleep on, and food, which is not fit for human consumption, is thrown at them "as if they were pigs". Furthermore, whenever he is visited by his family, he is handcuffed to another prisoner. The author alleges that whenever inmates complain to the warders about the prison conditions, they are subjected to "the worst kind of brutality", and that they are never permitted to see the Commissioner of Prisons.
State party's information and observations on admissibility and the author's comments thereon
4. In a submission dated 20 March 1995, the State party confirms that the author has exhausted all available domestic remedies in regard to his complaint about the procedure adopted at the preliminary enquiry. It further concedes that the author has exhausted domestic remedies with respect to his complaints about prison conditions.
Committee's decision on admissibility
5. During its fifty-fifth session, the Committee considered the admissibility of the communication. It noted that the State party conceded that the author had exhausted available domestic remedies and observed that with respect to the author's complaint that he was not treated with humanity and with respect for the inherent dignity of the human person while in detention, he had substantiated this claim for it to be considered on its merits.
6.1 The Committee further considered that the author had sufficiently substantiated, for purposes of admissibility, that the delay in bringing him to trial and his continued detention throughout this period, without the benefit of bail and the time already served not having been taken into account, might raise issues under article 9, paragraph 3, and article 14, subparagraph 3 (c), of the Covenant, which needed to be examined on the merits.
6.2 On 12 October 1995, the Human Rights Committee declared the communication admissible inasmuch as it appeared to raise issues under article 10, paragraph 1; article 9, paragraph 3, and article 14, subparagraph 3 (c), of the Covenant.
Further information received from the State party
7.1 In a further submission on admissibility received after the adoption of the admissibility decision the State party stated that, on 19 March 1991, the author's original indictment has been quashed on the ground that: "it was founded upon a committal which was void, illegal, of no effect, and ultra vires the Indictable Offences (Preliminary Enquires) Act". The judge ordered that the indictment be quashed and that a new preliminary enquiry be commenced.
7.2 The result of the new preliminary enquiry was that the author was committed to stand trial for murder, attempted murder, wounding with intent and shooting with intent. At the trial in the Assize's court, the author pleaded guilty to manslaughter and, on 25 March 1994, was sentenced to four years' imprisonment with hard labour.
Examination of the merits
8.1 The Committee has considered the communication in the light of all the information provided by the parties as provided in article 5, paragraph 1, of the Optional Protocol. It notes with concern that, following the transmittal of the Committee's decision on admissibility, the State party has provided no further information. 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 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, despite a reminder being sent on 11 March 1997, due weight must be given to the author's allegations, to extent that they have been substantiated.
8.2 The Committee notes that the information before it shows that the author was arrested on 6 July 1986, that shortly after the preliminary enquiry began, the magistrate to whom the case was assigned was suspended and that the author was not brought before a new magistrate until 22 February 1988. He was committed to stand trial on 25 May 1988. A constitutional motion was filed, on 1 November 1990, resulting in the author's indictment being quashed and a new preliminary enquiry being ordered on 19 March 1991. The author was convicted of manslaughter on 25 March 1994. This chronology reveals that the author was in detention for seven years and eight months before being sentenced on a plea of guilty of manslaughter. The author received a sentence of four years of imprisonment with hard labour which would appear to have taken into account the time he had already served. Nevertheless, the Committee considers that, a period of seven years and eight months between the author's arrest and the start of the trial against him, does in the absence of any adequate explanations from the State party which would explain the delay, amount to a violation of article 9, paragraph 3, and article 14, subparagraph 3 (c), of the Covenant, since the trial against a person kept in detention was neither instituted nor completed within a reasonable time and since there were undue delays in the trial itself.
8.3 With regard to the author's allegations of conditions of detention and ill-treatment, the Committee notes that the State party has not offered any information to refute the author's allegations. Due weight must therefore be given to the author's allegation that he only had "a piece of sponge and old newspapers" to sleep on, "food not fit for human consumption" given to him, and that he was treated with brutality by the warders whenever complaints were made. In the Committee's view, the author was not treated with humanity and respect for the inherent dignity of the human person, in violation of article 10, 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 before it disclose violations of article 10, paragraph 1; article 9, paragraph 3, and article 14, subparagraph 3 (c), of the Covenant.
10. Pursuant to article 2, subparagraph 3 (a), of the Covenant, the author is entitled to an effective remedy, including compensation for the ill-treatment suffered and the undue delays in the adjudication of his case. The Committee reaffirms the obligation to treat individuals deprived of their liberty with respect for the inherent dignity of the human person. The State party is under an obligation to ensure that similar events do not occur in the future.
11. 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.
F Communication No. 535/1993; Lloydell Richards v. Jamaica
(Views adopted on 31 March 1997, fifty-ninth session)
Submitted by: Lloydell Richards
[represented by Mr. Saul Lehrfreund]
Victim: The author
State party: Jamaica
Date of communication: 14 January 1993 (initial submission)
Date of decision on admissibility: 17 March 1995
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 31 March 1997,
Having concluded its consideration of Communication No. 535/1993 submitted to the Human Rights Committee on behalf of Mr. Lloydell Richards 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 the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The author of the communication is Lloydell Richards, a Jamaican citizen who at the time of submission of his communication was awaiting execution at St. Catherine District Prison, Jamaica. He claims to be a victim of violations by Jamaica of article 6, paragraph 2; article 7; article 14, paragraphs 1 and 2, subparagraphs 3 (c), (d) and (e), and paragraph 5, of the International Covenant on Civil and Political Rights. He is represented by Mr. Saul Lehrfreund. The author's death sentence has been commuted.
Facts as presented by the author
2.1 On 15 March 1982, the author was charged with the murder, on 8 or 9 March 1982, in the Parish of Westmoreland, of one S. L. On 26 September 1983, he appeared before the Home Circuit Court of Kingston; on arraignment. He pleaded guilty to manslaughter, a plea accepted by the prosecution. Counsel for the defence then requested an adjournment in order to call character witnesses in mitigation. The hearing was adjourned to 3 October 1983. However, the Director of Public Prosecutions, who has the authority, pursuant to section 94, paragraph 3 (c), of the Jamaican Constitution, to discontinue any criminal proceedings at any stage before judgement is delivered, considered that the plea of guilty to manslaughter should not have been accepted and decided to discontinue the proceedings in the case in order to charge the author with the murder on a fresh indictment.
2.2 Accordingly, at the hearing of 3 October 1983, a nolle prosequi was entered by the Director of Public Prosecutions; the new indictment was read out to the author, who pleaded not guilty. On 6 December 1983, the author was tried in the Home Circuit Court of Kingston, then presided over by another judge. On 13 December 1983, he was found guilty of murder and sentenced to death. On appeal, counsel for the author argued that the trial had been unconstitutional in the light of the earlier acceptance by the prosecution of a plea of manslaughter. The Court of Appeal of Jamaica dismissed his appeal on 10 April 1987. The author subsequently petitioned the Judicial Committee of the Privy Council for special leave to appeal; on 20 February 1991, leave to appeal was granted. On 29 and 30 June 1992, the Privy Council heard the author's appeal and dismissed it on 19 October 1992, recommending that the author's death sentence be commuted. Following the enactment of the Offences against the Person (Amendment) Act 1992, Jamaica created two categories of murder, capital and non-capital, consequently all persons previously convicted of murder had their conviction reviewed and reclassified under the new system. In December 1992, the author's offence was classified as "capital".
2.3 The case for the prosecution was that, on 8 March 1982 at about 8 p.m., the author, who worked as a driver of a minibus, picked up S.L., who was living in Montego Bay. She was stranded in Savanna-la-mar and, although Montego Bay was not on the scheduled route, the author said that he would bring her home as he had completed the last trip of the day. He first dropped the conductor of the bus at his home. At 9 p.m., the author stopped and had drinks in a bar. The bar owner saw S.L. coming out of the bus and trying to obtain a lift from cars going in the direction of Montego Bay. When she did not succeed, she re-entered the bus and left with the author. At 1 a.m., a witness who knew the author saw him coming out of a guest house and pulling S.L., who was crying, into the minibus. Several hours later, the author, covered in mud and blood, appeared at the bus conductor's house. He said that the bus had been hijacked by three armed men and that they had ordered him to drive into the countryside. When the bus became stuck in the mud, he managed to escape; he further said that he feared for S.L.'s life. The author and a few other people, followed by the police, soon found the minibus and the body of S.L. was discovered in a shallow grave nearby. She had died as a result of a head injury; a blood-stained tool was found in the bus. The deceased's body also showed signs of rape.
2.4 The author gave an unsworn statement from the dock. He maintained that the bus had been hijacked and said that two of the prosecution witnesses were motivated by malice. He further stated that he had been tortured by the police.
Complaint
3.1 The author claims that his trial was unfair. He encloses two articles which appeared in a well-known Jamaican newspaper and submits that the information given was prejudicial to his case. One of the articles, published on 1 October 1983, stated "that the author had pleaded guilty to manslaughter in the case of the death of S.L., a 17-year-old school girl". It further stated "that some members of the judiciary felt that manslaughter did not arise in a case of that nature", and summarized the prosecution's case. The author points out that this article was published two days before he appeared in court to be sentenced on the basis of his manslaughter plea and before the prosecution entered the nolle prosequi. The second article, published on 4 October 1983, reported the proceedings of the previous day, and, according to the author, in a way prejudicial to his defence. The author said that he had already pleaded guilty to manslaughter, thus depriving himself of the right to a fair trial before an independent and impartial tribunal, contrary to article 14, paragraph 1, of the Covenant.
3.2 The author further claims that the publicity given to the proceedings violated his right to be presumed innocent until proven guilty according to law.
3.3 The author points out that he was arrested on 9 March 1982, tried on 6 December 1983 and that the Court of Appeal dismissed his appeal on 10 April 1987. He submits that a delay of one year and nine months before being tried, and of three years and four months before hearing his appeal, is unreasonable, thus violating his rights under article 14, subparagraph 3 (c) and paragraph 5, of the Covenant.
3.4 With regard to article 14, subparagraph 3 (d), the author notes that, on 26 September 1983, when he pleaded guilty to manslaughter, he was represented by leading counsel, Mr. C.M., who requested an adjournment. At the hearing on 3 October 1983, he was again represented by C.M., who had been notified by the prosecution of its intention to enter a nolle prosequi. Prior to the hearing on 6 December 1983, C.M. applied to withdraw from the case on professional ethical grounds and requested an adjournment because junior counsel, who would take over the defence, could not attend the hearing. The judge refused both requests, primarily on the ground that the trial had already been postponed several times and criticized C.M. for not having started his investigations in Westmoreland until 27 November 1983 and for not having informed his client of his position. C.M. then indicated that he would remain for the defence that day. In the circumstances, the author submits, he was not adequately represented by C.M.
3.5 The author further claims that junior counsel was not in a position to effectively represent him, which she herself admitted. In this context, he notes that, on 7 December 1983, she, while apologizing to the Court for having been absent on the first day of the trial, said: "But I wish to indicate to the Court that I have no intention of taking or accepting any money from the Government for this case, because I feel that I have not given it my best and, in the circumstances, I am here this morning to 'fight the good fight with all my might'; but I will not, because I don't feel it is justified and my conscience would not allow me, accept any money in relation to this legal aid assignment, but I am here to protect my client."
3.6 The author points out that on Friday, 9 December 1983, just before the end of the hearing, counsel indicated that an expert witness, a medical doctor, would be called to give evidence on behalf of the defence. On Monday, 12 December 1983, she stated, however, that the witness was not available. No other witnesses were called for the defence. According to the author, this amounts to a violation of article 14, subparagraph 3 (e), of the Covenant.
3.7 In the light of the above, article 6, paragraph 2, is said to have been violated, since 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 available, a violation of this provision.
3.8 The author submits that, during the interrogation on 9 March 1982, he was tortured by the police. He alleges that the officer who arrested him held him by the shirt in a choking position so that he was unable to reply to any of the questions. Later that day, he was taken to an office where, allegedly, he was "mobbed" by five or six police officers, who sprayed tear-gas in his eyes, ears and nostrils, and hit him with a stick. As a result, he submits, he could not see or hear well for a number of days and was unable to drink for 17 days. He claims that he was denied medical treatment.
3.9 It is submitted that the execution of the author at this point in time would amount to a violation of article 7, because of the delays in adjudicating the case and the time spent on death row. In support of this contention, it is submitted that the Privy Council, when dismissing the author's appeal, expressed its concern about the delays in the judicial proceedings in the case, and recommended that the death sentence be commuted. Furthermore, the author is said to have been subjected to cruel, inhuman and degrading treatment and punishment while being held in the death row section of St. Catherine District Prison where the living conditions are said to be appalling. Finally, the mental anguish and anxiety resulting from prolonged detention on death row, exacerbated by the changing attitudes of the Jamaican authorities in carrying out executions, are said to constitute a separate violation of article 7.
3.10 As to the exhaustion of domestic remedies, the author concedes that he has not applied to the Supreme (Constitutional) Court of Jamaica for redress. He argues that a constitutional motion in the Supreme Court would inevitably fail, in the light of the precedent set by the Judicial Committee's decisions in DPP v. Nasralla [(1967) 2 ALL ER 161] and Riley et al. v. Attorney General of Jamaica [(1982) 2 ALL ER 469], where it was held that the Jamaican Constitution was intended to prevent the enactment of unjust laws and not merely unjust treatment under the law. Since he claims unfair treatment under the law, and not that post-constitutional laws are unconstitutional, a constitutional motion would not be an effective remedy in his case. He further argues that even if it were accepted that a constitutional motion is a final remedy to be exhausted, it would not be available to him because of his lack of funds, the absence of legal aid for this purpose and the unwillingness of Jamaican lawyers to represent applicants on a pro bono basis for the purpose.
State party's observations on admissibility and counsel's comments
4. By submission of 23 June 1993, the State party argued that the communication was inadmissible for failure to exhaust domestic remedies. In this context, the State party argued that it is open to the author to seek redress for the alleged violations of his rights by way of a constitutional motion to the Supreme Court.
5. In his comments, counsel reiterated that the constitutional motion was not an effective and available domestic remedy in the author's case. In this context, he refers to the Committee's jurisprudence that, in the absence of legal aid, a constitutional motion is not an available remedy. It was stated that the constitutionality of the execution of the death sentence cannot be brought before the Judicial Committee of the Privy Council without first exhausting domestic remedies through the Supreme (Constitutional) Court.
Committee's decision on admissibility
6.1 At its fifty-third session, the Committee considered the admissibility of the communication. It noted the State party's claim that the communication was inadmissible for failure to exhaust domestic remedies. The Committee recalled its constant jurisprudence that for purposes of article 5, subparagraph 2 (b), of the Optional Protocol, domestic remedies must be both effective and available. As regards the State party's argument that a constitutional remedy was still open to the author, the Committee noted that the Supreme Court of Jamaica had, in some cases, allowed applications for constitutional redress in respect of breaches of fundamental rights, after the criminal appeals in these cases had been dismissed. However, the Committee also recalled that the State party has indicated on several occasions that no legal aid is made available for constitutional motions. The Committee considered that, in the absence of legal aid, a constitutional motion does not, in the circumstances of the instant case, constitute an available remedy which needs to be exhausted for purposes of the Optional Protocol. In this respect, the Committee therefore found that it was not precluded by article 5, subparagraph 2 (b), from considering the communication.
6.2 The Committee considered that the author and his counsel had sufficiently substantiated for purposes of admissibility the claim that the trial against the author did not fulfil the requirements laid down in article 14 of the Covenant. The Committee found that the entering of nolle prosequi by the prosecution after the author had pleaded guilty to manslaughter and the publicity connected thereto may have affected the presumption of innocence in the author's case. The Committee also found that the judge's refusal to adjourn the trial after counsel had indicated that he was no longer willing to represent him may have affected the author's right to prepare his defence adequately and to obtain the attendance of witnesses on his behalf. Further, the Committee found that the delay in the judicial proceedings might raise issues under article 14, subparagraph 3 (c) and paragraph 5, of the Covenant. The Committee considered that these issues needed to be examined on the merits.
6.3 The Committee considered that, in the absence of information provided by the State party, the author had sufficiently substantiated, for purposes of admissibility, his claim that he was subjected to ill-treatment upon arrest and subsequently denied medical treatment. This claim might raise issues under articles 7 and 10 of the Covenant, which needed to be examined on the merits.
6.4 The Committee next turned to the author's claim that his prolonged detention on death row amounted to a violation of article 7 of the Covenant. While the Committee had taken due note of the judgement of the Privy Council in the case of Earl Pratt and Ivan Morgan (which the author has apparently not invoked in the domestic courts of Jamaica), it reiterated its prior jurisprudence that lengthy detention on death row does not, per se, constitute cruel, inhuman or degrading treatment in violation of article 7 of the Covenant. The Committee observed that the author had not substantiated, for purposes of admissibility, any specific circumstances of his case that would raise an issue under article 7 of the Covenant. This part of the communication was therefore deemed inadmissible under article 2 of the Optional Protocol.
Examination on the merits
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, no further information has been received from the State party clarifying the matter raised by the present communication. The deadline for submission of the State party's information and observations under article 4, paragraph 2, of the Optional Protocol expired on 1 November 1995. No additional information has been received from the State party in spite of a reminder addressed to it on 2 August 1996. The Committee recalls that in accordance with article 4, paragraph 2, of the Optional Protocol, a State party must examine in good faith all the allegations brought against it, and 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 allegations submitted by the author, to the extent that they have been substantiated.
7.2 The author has claimed that his trial was unfair because the prosecution entered a nolle prosequi plea after the author had pleaded guilty to a charge of manslaughter. The author claims that the extent of media publicity given to his guilty plea negated his right to presumption of innocence and thus denied him the right to a fair trial. The Court of Appeal of Jamaica acknowledged the possibility of disadvantage to the author at presenting his defence at the trial, but observed that "nothing shows that the convicting jury was aware of this". The entry of a nolle prosequi was found by the Jamaican courts and the Judicial Committee of the Privy Council to be legally permissible, as under Jamaican law the author had not been finally convicted until sentence was passed. The question for the Committee is not, however, whether it was lawful, but whether its use was compatible with the guarantees of fair trial enshrined in the Covenant in the particular circumstances of the case. Nolle prosequi is a procedure which allows the Director of Public Prosecutions to discontinue a criminal prosecution. The State party has argued that it may be used in the interests of justice and that it was used in the present case to prevent a miscarriage of justice. The Committee observes, however, that the Prosecutor in the instant case was fully aware of the circumstances of Mr. Richards' case and had agreed to accept his manslaughter plea. The nolle prosequi was used, not to discontinue proceedings against the author, but to enable a fresh prosecution against the author to be initiated immediately, on exactly the same charge in respect of which he had already entered a plea of guilty to manslaughter, a plea which had been accepted. Thus, its purpose and effect were to circumvent the consequences of that plea, which was entered in accordance with the law and practice of Jamaica. In the Committee's opinion, the resort to a nolle prosequi in such circumstances and the initiation of a further charge against the author was incompatible with the requirements of a fair trial within the meaning of article 14, paragraph 1, of the Covenant.
7.3 With regards to the further claims of violations of article 14, subparagraphs 3 (b), (c) and (e) and paragraph 5, in respect of the author's inadequate representation, and undue delay in the proceedings, the Committee expresses its concern with the allegations made. However, the Committee is of the view that in the light of the original flaw in the author's trial as stated above, it need not make a finding on these issues.
7.4 With respect to the author's allegation regarding his ill-treatment upon arrest and the subsequent denial of medical treatment, the Committee notes that this was put before the jury and the jury rejected it, and moreover that the author chose to make an unsworn statement from the dock which prevented his cross-examination on the subject. In the circumstances of the present case, the Committee considers that there has been no violation of article 7 and article 10, paragraph 1, of the Covenant.
7.5 The Committee is of the opinion that the imposition of a sentence of death upon conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is possible, a violation of article 6 of the Covenant. As the Committee noted in its General Comment 6 [16], the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that "the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence and the right to review of the conviction and sentence by a higher tribunal". In the present case, since the final sentence of death was passed without having observed the requirements of article 14 concerning fair trial and presumption of innocence it must be concluded that the right protected by article 6 of the Covenant has been violated.
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 1, and, consequently, article 6, of the Covenant.
9. Pursuant to article 2, subparagraph 3 (a), of the Covenant, the author is entitled to an effective remedy. The Committee notes that the State party has commuted the author's death sentence and considers that this constitutes sufficient remedy in this case.
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.
APPENDIX
A. Individual opinion by Nisuke Ando (dissenting)
[Original: English]
I am unable to persuade myself to share the Committee's Views in the present case for the following reasons:
In my opinion, the purpose of a criminal trial is to ascertain what actually took place in the case at issue, that is, to find "true facts" of the case, on which conviction and sentence should be based. Of course, "true facts" as submitted by the defendant may differ from "true facts" as submitted by the prosecution, and since defendants are generally at a disadvantage compared to the prosecution, various procedural guarantees exist to secure a "fair trial". The requirement of equality of arms, rules of evidence, control of the proceedings by independent and impartial judges, deliberation and decision by neutral juries, and the system of appeals are all part of these guarantees.
In the present case, the author initially pleaded guilty to manslaughter, which was accepted by the prosecution. However, the Director of Public Prosecution, who has authority to discontinue any criminal proceedings at any stage before judgement is delivered, considered that the plea of guilty of manslaughter should not have been accepted and decided to discontinue proceedings in the case, in order to charge the author with murder on a fresh indictment (see paragraph 2.1). Consequently, a nolle prosequi was entered by the prosecution to discontinue the proceedings and the new indictment of murder was entered. In the subsequent trial, the author was found guilty of murder and sentenced to death. His appeal to the Court of Appeal of Jamaica was dismissed, and the Judicial Committee of the Privy Council, which granted the author special leave to appeal, heard his appeal and dismissed it (see paragraph 2.2).
In the Committee's view, the resort to a nolle prosequi in the present case, and the initiation of a further charge against the author, were incompatible with the requirements of a fair trial within the meaning of article 14, paragraph 1, of the Covenant (see paragraph 7.2). However, in my opinion, fairness of the trial in the present case must not be determined solely on the basis of the use of nolle prosequi by the prosecution. Such determination requires careful appreciation of all the relevant circumstances, including the handling of a nolle prosequi by the judges concerned, those at first instance, at the Court of Appeal, and in the Judicial Committee of the Privy Council. It is my understanding that judges need not accept the prosecution's charge entered after its resort to a nolle prosequi. It is also my understanding that the independence and impartiality of judges are well established in Jamaica as well as in the United Kingdom. Considering all these circumstances and the very purpose of a criminal trial as stated above, I am unable to persuade myself to share the Committee's Views that the use of a nolle prosequi by the prosecution at the initial stage made the author's trial in its entirety an unfair one, in violation of article 14, paragraph 1, of the Covenant.
B. Individual opinion by David Kretzmer (dissenting)
[Original: English]
Like my colleague Nisuke Ando, I am unable to agree with the Committee's view that the State party violated the author's right to a fair trial under article 14, paragraph 1, of the Covenant.
In December 1993, the author was tried for murder by a judge and jury under the regular proceedings of the Jamaican legal system. He was found guilty by the jury which heard and assessed all the evidence against him. The Committee does not point to any departure during this trial from the minimum guarantees specified in article 14, paragraph 3, of the Covenant. It bases its finding of a violation of article 14, paragraph 1, solely on the fact that the trial was held subsequent to nolle prosequi being entered by the Director of Public Prosecutions, after the author had pleaded guilty to a charge of manslaughter in the initial trial on the same charges.
While the lack of coordination between the prosecutor in the first trial, who consented to the plea of manslaughter, and the Director of Public Prosecutions, who entered the nolle prosequi, was clearly unfortunate, I cannot agree that this lack of coordination inevitably meant that the author was denied a "fair and public hearing by a competent, independent and impartial tribunal established by law" in the second trial. Had the defence in the second trial been of the opinion that the jury could not be independent and impartial since it would be influenced by press reports of the author's guilty plea in the first trial, it could have raised this point at the beginning of the trial, or made an attempt to challenge the jurors. It did neither. Furthermore, in his summing up to the jury, the judge made it quite clear to the jurors that they were to base their verdict solely on the evidence presented to them. There was strong evidence against the author and there is nothing to suggest that the jurors ignored the directions of the judge. I am therefore of the opinion that there is no adequate basis for finding a violation of article 14, paragraph 1, of the Covenant, in the present case.
G. Communication No. 538/1993; Charles E. Stewart v. Canada
(Views adopted on 1 November 1996, fifty-eighth session)
Submitted by: Charles E. Stewart
[represented by counsel]
Victim: The author
State party: Canada
Date of communication: 18 February 1993 (initial submission)
Date of decision on admissibility: 18 March 1994
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 1 November 1996,
Having concluded its consideration of Communication No. 538/1993 submitted to the Human Rights Committee on behalf of Mr. Charles E. Stewart 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 the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The author of the communication is Charles Edward Stewart, a British citizen born in 1960. He has resided in Ontario, Canada, since the age of seven, and currently faces deportation from Canada. He claims to be a victim of violations by Canada of articles 7, 9, 12, 13, 17 and 23 of the International Covenant on Civil and Political Rights. He is represented by counsel.
Facts as submitted by the author
2.1 The author was born in Scotland in December 1960. At the age of seven, he emigrated to Canada with his mother; his father and older brother were already, at the time, living in Canada. The author's parents have since separated, and the author lives together with his mother and with his younger brother. His mother is in poor health, and his brother is mentally disabled and suffers from chronic epilepsy. His older brother was deported to the United Kingdom in 1992, because of a previous criminal record. This brother apart, all of the author's relatives reside in Canada; the author himself has two young twin children, who live with their mother, from whom the author divorced in 1989.
2.2 The author claims that for most of his life, he considered himself to be a Canadian citizen. He claims that it was only when he was contacted by immigration officials because of a criminal conviction that he realized that, legally, he was only a permanent resident, as his parents had never requested Canadian citizenship for him during his youth. It is stated that between September 1978 and May 1991, the author was convicted on 42 occasions, mostly for petty offences and traffic offences. Two convictions were for possession of marijuana seeds and of a prohibited martial arts weapon. One conviction was for assault with bodily harm, committed in September 1984, on the author's former girlfriend. Counsel indicates that most of her client's convictions are attributable to her client's substance abuse problems, in particular alcoholism. Since his release on mandatory supervision in September 1990, the author has participated in several drug and alcohol rehabilitation programmes. He has further received medical advice to control his alcohol abuse and, with the exception of one relapse, has remained alcohol-free.
2.3 It is stated that although the author cannot contribute much financially to the subsistence of his family, he does so whenever he is able to and helps his ailing mother and retarded brother around the home.
2.4 In 1990, an immigration enquiry was initiated against the author pursuant to section 27, paragraph 1, of the Immigration Act. Under this provision, a permanent resident in Canada must be ordered deported from Canada if an adjudicator in an immigration enquiry is satisfied that the defendant has been convicted of certain specified offences under the Immigration Act. On 20 August 1990, the author was ordered deported on account of his criminal convictions. He appealed the order to the Immigration Appeal Division. The Board of the Appeal Division heard the appeal on 15 May 1992, dismissing it by judgment of 21 August 1992, which was communicated to the author on 1 September 1992.
2.5 On 30 October 1992, the author complained to the Federal Court of Appeal for an extension of the time limit for applying for leave to appeal. The Court first granted the request but subsequently dismissed the application for leave to appeal. There is no further appeal or application for leave to appeal from the Federal Court of Appeal to the Supreme Court of Canada, or to any other domestic tribunal. Thus, no further effective domestic remedy is said to be available.
2.6 If the author is deported, he would not be able to return to Canada without the express consent of the Canadian Minister of Employment and Immigration, under the terms of sections 19(1)(i) and 55 of the Immigration Act. A re-application for emigration to Canada would not only require ministerial consent but also that the author fulfil all the other statutory admissibility criteria for immigrants. Furthermore, because of his convictions, the author would be barred from readmission to Canada under section 19(2)(a) of the Act.
2.7 As the deportation order against the author could now be enforced at any point in time, counsel requests the Committee to seek from the State party interim measures of protection, pursuant to rule 86 of the rules of procedure.
Complaint
3.1 The author claims that the above facts reveal violations of articles 7, 9, 12, 13, 17 and 23 of the Covenant. He claims that in respect of article 23, the State party has failed to provide for clear legislative recognition of the protection of the family. In the absence of such legislation which ensures that family interests would be given due weight in administrative proceedings such as, for example, those before the Immigration and Refugee Board, he claims, there is a prima facie issue as to whether Canadian law is compatible with the requirement of protection of the family.
3.2 The author also refers to the Committee's General Comment on article 17, according to which "interference [with home and privacy] can only take place on the basis of law, which itself must be compatible with the provisions, aims and objectives of the Covenant". He asserts that there is no law which ensures that his legitimate family interests or those of the members of his family would be addressed in deciding on his deportation from Canada; there is only the vague and general discretion given to the Immigration Appeal Division to consider all the circumstances of the case, which is said to be insufficient to ensure a balancing of his family interests and other legitimate State aims. In its decision, the Immigration Appeal Division allegedly did not give any weight to the disabilities of the author's mother and brother; instead, it ruled that "taking into account that the appellant does not have anyone depending on him and there being no real attachment to and no real support from anyone, the Appeal Division sees insufficient circumstances to justify the appellant's presence in this country".
3.3 According to the author, the term "home" should be interpreted broadly, encompassing the (entire) community of which an individual is a part. In this sense, his "home" is said to be Canada. It is further submitted that the author's privacy must include the fact of being able to live within this community without arbitrary or unlawful interference. To the extent that Canadian law does not protect aliens against such interference, the author claims a violation of article 17.
3.4 The author submits that article 12, paragraph 4, is applicable to his situation since, for all practical purposes, Canada is his own country. His deportation from Canada would result in an absolute statutory bar from re-entering Canada. It is noted in this context that article 12(4) does not indicate that everyone has the right to enter his country of nationality or of birth but only "his own country". Counsel argues that the United Kingdom is no longer the author's "own country", since he left it at the age of seven and his entire life is now centred upon his family in Canada - thus, although not Canadian in a formal sense, he must be considered de facto a Canadian citizen.
3.5 The author affirms that his allegations under articles 17 and 23 should also be examined in the light of other provisions, especially articles 9 and 12. While article 9 addresses deprivation of liberty, there is no indication that the only concept of liberty is one of physical freedom. Article 12 recognizes liberty in a broader sense: the author believes that his deportation from Canada would violate "his liberty of movement within Canada and within his community", and that it would not be necessary for one of the legitimate objectives enumerated in article 12, paragraph 3.
3.6 The author contends that the enforcement of the deportation order would amount to cruel, inhuman and degrading treatment within the meaning of article 7 of the Covenant. He concedes that the Committee has not yet decided whether the permanent separation of an individual from his/her family and/or close relatives and the effective banishment of a person from the only country he ever knew and in which he grew up may amount to cruel, inhuman and degrading treatment; he submits that this is an issue to be determined on its merits.
3.7 In this connection, the author recalls that: (a) he has resided in Canada since the age of seven; (b) at the time of issue of the deportation order all members of his immediate family resided in Canada; (c) while his criminal record is extensive, it does by no means reveal that he is a danger to public safety; (d) he has taken voluntary steps to control his substance-abuse problems; (e) deportation from Canada would effectively and permanently sever all his ties in Canada; and (f) the prison terms served for various convictions already constitute adequate punishment and the reasoning of the Immigration Appeal Division, by emphasizing his criminal record, amounts to the imposition of additional punishment.
Special Rapporteur's request for interim measures of protection and State party's reaction
4.1 On 26 April 1993, the Special Rapporteur on New Communications transmitted the communication to the State party, requesting it, under rule 91 of the rules of procedure, to provide information and observations on the admissibility of the communication. Under rule 86 of the rules of procedure, the State party was requested not to deport the author to the United Kingdom while his communication was under consideration by the Committee.
4.2 In a submission dated 9 July 1993 in reply to the request for interim measures of protection, the State party indicates that although the author would undoubtedly suffer personal inconvenience should he be deported to the United Kingdom, there are no special or compelling circumstances in the case that would appear to cause irreparable harm. In this context, the State party notes that the author is not being returned to a country where his safety or life would be in jeopardy; furthermore, he would not be barred once and for all from readmission to Canada. Secondly, the State party notes that although the author's social ties with his family may be affected, his complaint makes it clear that his family has no financial or other objective dependence on him: the author does not contribute financially to his brother, has not maintained contact with his father for seven or eight years and, after the divorce from his wife in 1989, apparently has not maintained any contact with his wife or children.
4.3 The State party submits that the application of rule 86 should not impose a general rule on States parties to suspend measures or decisions at a domestic level unless there are special circumstances where such a measure or decision might conflict with the effective exercise of the author's right of petition. The fact that a complaint has been filed with the Committee should not automatically imply that the State party is restricted in its power to implement a deportation decision. The State party argues that considerations of State security and public policy must be considered prior to imposing restraints on a State party to implement a decision lawfully taken. It therefore requests the Committee to clarify the criteria at the basis of the Special Rapporteur's decision to call for interim measures of protection and to consider withdrawing the request for interim protection under rule 86.
4.4 In her comments, dated 15 September 1993, counsel challenges the State party's arguments related to the application of rule 86. She contends that deportation would indeed bar the author's readmission to Canada forever. Furthermore, the test of what may constitute "irreparable harm" to the petitioner should not be considered by reference to the criteria developed by the Canadian courts where, it is submitted, the test for irreparable harm in relation to family has become one of almost exclusive financial dependency, but by reference to the Committee's own criteria.
4.5 Counsel submits that the communication was filed precisely because Canadian courts, including the Immigration Appeal Division, do not recognize family interests beyond financial dependency of family members. She adds that it is the very test applied by the Immigration Appeal Division and the Federal Court which is at issue before the Human Rights Committee: it would defeat the effectiveness of any order the Committee might make in the author's favour in the future if the rule 86 request were to be cancelled now. Finally, counsel contends that it would be unjustified to apply a "balance of convenience" test in determining whether or not to invoke rule 86, as this test is inappropriate where fundamental human rights are at issue.
State party's admissibility observations and counsel's comments
5.1 In its submission under rule 91, dated 14 December 1993, the State party contends that the author has failed to substantiate his allegations of violations of articles 7, 9, 12 and 13 of the Covenant. It recalls that international and domestic human rights law clearly states that the right to remain in a country and not to be expelled from it is confined to nationals of that State. These laws recognize that any such rights possessed by non-nationals are available only in certain circumstances and are more limited than those possessed by nationals. Article 13 of the Covenant "delineates the scope of that instrument's application in regard to the right of an alien to remain in the territory of a State party. ... Article 13 directly regulates only the procedure and not the substantive grounds for expulsion. Its purpose is clearly to prevent arbitrary expulsions. [The provision] aims to ensure that the process of expelling such a person complies with what is laid down in the State's domestic law and that it is not tainted by bad faith or the abuse of power". Reference is made to the Committee's Views in Communication No. 58/1979, Maroufidou v. Sweden.
5.2 The State party submits that the application of the Immigration Act in the instant case satisfied the requirements of article 13. In particular, the author was represented by counsel during the inquiry before the immigration adjudicator and was given the opportunity to present evidence as to whether he should be permitted to remain in Canada and to cross-examine witnesses. Based on evidence adduced during the inquiry, the adjudicator issued a deportation order against the author. The State party explains that the Immigration Appeal Board to which the author complained is an independent and impartial tribunal with jurisdiction to consider any ground of appeal that involved a question of law or fact, or mixed law and fact. It also has jurisdiction to consider an appeal on humanitarian grounds that an individual should not be removed from Canada. The Board is said to have carefully considered and weighed all the evidence presented to it, as well as the circumstances of the author's case.
5.3 While the State party concedes that the right to remain in a country might exceptionally fall within the scope of application of the Covenant, it is submitted that there are no such circumstances in the case: the decision to deport Mr. Stewart is said to be "justified by the facts of the case and by Canada's duty to enforce public interest statutes and protect society. Canadian courts have held that the most important objective for a government is to protect the security of its nationals. This is consistent with the view expressed by the Supreme Court of Canada that the executive arm of government is pre-eminent in matters concerning the security of its citizens ... and that the most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country".
5.4 The State party argues that both the decision to deport Mr. Stewart and to uphold the deportation order met with the requirements of the Immigration Act, and that these decisions were in accordance with international standards; there are no special circumstances which would "trigger the application of the Covenant to justify the complainant's stay in Canada". Furthermore, there is no evidence of abuse of power by Canadian authorities and in the absence of such an abuse, "it is inappropriate for the Committee to evaluate the interpretation and application by those authorities of Canadian law".
5.5 As to the alleged violation of articles 17 and 23 of the Covenant, the State party argues that its immigration laws, regulations and policies are compatible with the requirements of these provisions. In particular, section 114(2) of the Immigration Act allows for the exemption of persons from any regulations made under the Act or the admission into Canada of persons where there exist compassionate or humanitarian considerations. Such considerations include the existence of family in Canada and the potential harm that would result if a member of the family were removed from Canada.
5.6 A general principle of Canadian immigration programs and policies is that dependants of immigrants into Canada are eligible to be granted permanent residence at the same time as the principal applicant. Furthermore, where family members remain outside Canada, the Immigration Act and ancillary regulations facilitate reunification through family class and assisted relative sponsorships: "[r]eunification in fact occurs as a result of such sponsorships in almost all cases".
5.7 In view of the above, the State party submits that any effects which a deportation may have on the author's family in Canada would occur further to the application of legislation that is compatible with the provisions, aims and objectives of the Covenant: "In the case at hand, humanitarian and compassionate grounds, which included family considerations, were taken into account during the proceedings before the immigration authorities and were balanced against Canada's duty and responsibility to protect society and to properly enforce public interest statutes".
5.8 In conclusion, the State party affirms that Mr. Stewart has failed to substantiate violations of rights protected under the Covenant and is in fact claiming a right to remain in Canada. He is said to be in fact seeking to establish an avenue under the Covenant to claim the right not to be deported from Canada: this claim is incompatible ratione materiae with the provisions of the Covenant and inadmissible under article 3 of the Optional Protocol.
6.1 In her comments, counsel notes that the State party wrongly conveys the impression that the author had two full hearings before the immigration authorities, which took into account all the specific factors in his case. She observes that the immigration adjudicator conducting the inquiry "has no equitable jurisdiction". Once he is satisfied that the person is the one described in the initial report, that this person is a permanent resident of Canada and that he has been convicted of a criminal offence, a removal order is mandatory. Counsel contends that the adjudicator "may not take into account any other factors and has no statutory power of discretion to relieve against any hardship caused by the issuance of the removal order".
6.2 As to the discretionary power, under section 114(2) of the Immigration Act, to exempt persons from regulatory requirements and to facilitate admission on humanitarian grounds, counsel notes that this power is not used to relieve the hardship of a person and his/her family caused by the removal of a permanent resident from Canada: "[T]he Immigration Appeal Division exercises a quasi-judicial statutory power of discretion after a full hearing, and it has been seen as inappropriate for the Minister or his officials to in fact 'overturn' a negative decision ... by this body".
6.3 Counsel affirms that the humanitarian and compassionate discretion delegated to the Minister by the Immigration Regulations can in any event hardly be said to provide an effective mechanism to ensure that family interests are balanced against other interests. In recent years, Canada is said to have routinely separated families or attempted to separate families where the interests of young children were at stake: thus, "the best interests of children are not taken into account in this administrative process".
6.4 Counsel submits that Canada ambiguously conveys the impression that family class and assisted relative sponsorships are almost always successful. This, according to her, may be true of family class sponsorships, but it is clearly not the case for assisted relative sponsorships, since assisted relative applicants must meet all the selection criteria for independent applicants. Counsel further dismisses as "patently wrong" the State party's argument that the Court, upon application for judicial review of a deportation order, may balance the hardship caused by removal against the public interest. The Court, as it has articulated repeatedly, cannot balance these interests, is limited to strict judicial review and cannot substitute its own decision for that of the decision maker(s), even if it would have reached a different conclusion on the facts: it is limited to quashing a decision because of jurisdictional error, a breach of natural justice or fairness, an error of law or an erroneous finding of fact made in a perverse or in a capricious manner (sect. 18(1) Federal Court Act).
6.5 As to the compatibility of the author's claims with the Covenant, counsel notes that Mr. Stewart is not claiming an absolute right to remain in Canada. She concedes that the Covenant does not, per se, recognize a right of non-nationals to enter or remain in a State. Nonetheless, it is submitted that the Covenant's provisions cannot be read in isolation but are interrelated: accordingly, article 13 must be read in the light of other provisions.
6.6 Counsel acknowledges that the Committee has held that article 13 provides for procedural and not for substantive protection; however, procedural protection cannot be interpreted in isolation from the protection provided under other provisions of the Covenant. Thus, legislation governing expulsion cannot discriminate on any of the grounds listed in article 26; nor can it arbitrarily or unlawfully interfere with family, privacy and home (article 17).
6.7 As to the claim under article 17, counsel notes that the State party has only set out the provisions of the Immigration Act which provide for family reunification - provisions which she considers inapplicable to the author's case. She adds that article 17 imposes positive duties upon States parties, and that there is no law in Canada which would recognize family, privacy, or home interests in the context raised in the author's case. Furthermore, while she recognizes that there is a process provided by law which grants to the Immigration Appeal Division a general discretion to consider the personal circumstances of a permanent resident under order of deportation, this discretion does not recognize or encompass consideration of fundamental interests such as integrity of the family. Counsel refers to the case of Sutherland as another example of the failure to recognize that integrity of the family is an important and protected interest. For counsel, there "can be no balancing of interests if ... family ... interests are not recognized as fundamental interests for the purpose of balancing. The primary interest in Canadian law and jurisprudence is the protection of the public ...".
6.8 Concerning the State party's contention that a "right to remain" may only come within the scope of application of the Covenant under exceptional circumstances, counsel claims that the process whereby the author's deportation was decided and confirmed proceeded without recognition or cognizance of the author's rights under articles 7, 9, 12, 13, 17 or 23. While it is true that Canada has a duty to ensure that society is protected, this legitimate interest must be balanced against other protected individual rights.
6.9 Counsel concedes that Mr. Stewart was given an opportunity, before the Immigration Appeal Division, to present all the circumstances of his case. She concludes, however, that domestic legislation and jurisprudence do not recognize that her client will be subjected to a breach of his fundamental rights if he were deported. This is because such rights are not and need not be considered given the way immigration legislation is drafted. Concepts such as home, privacy, family or residence in one's own country, which are protected under the Covenant, are foreign to Canadian law in the immigration context. The overriding concern in view of removal of a permanent resident, without distinguishing long-term residents from recently arrived immigrants, is national security.
Committee's decision on admissibility
7.1 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.
7.2 The Committee noted that it was uncontested that there were no further domestic remedies for the author to exhaust, and that the requirements of article 5, subparagraph 2 (b), of the Optional Protocol had been met.
7.3 Inasmuch as the author's claims under articles 7 and 9 of the Covenant are concerned, the Committee examined whether the conditions of articles 2 and 3 of the Optional Protocol were met. In respect of articles 7 and 9, the Committee did not find, on the basis of the material before it, that the author had substantiated, for purposes of admissibility, his claim that deportation to the United Kingdom and separation from his family would amount to cruel or inhuman treatment within the meaning of article 7, or that it would violate his right to liberty and security of person within the meaning of article 9, paragraph 1. In this respect, therefore, the Committee decided that the author had no claim under the Covenant, within the meaning of article 2 of the Optional Protocol.
7.4 As to article 13, the Committee noted that the author's deportation was ordered pursuant to a decision adopted in accordance with the law and that the State party had invoked arguments of protection of society and national security. It was not apparent that this assessment was reached arbitrarily. In this respect, the Committee found that the author had failed to substantiate his claim for purposes of admissibility and that this part of the communication was inadmissible under article 2 of the Optional Protocol.
7.5 Concerning the claim under article 12, the Committee noted the State party's contention that no substantiation in support of this claim had been adduced, as well as counsel's contention that article 12, paragraph 4, was applicable to Mr. Stewart's case. The Committee noted that the determination of whether article 12, paragraph 4, was applicable to the author's situation required a careful analysis of whether Canada could be regarded as the author's "country" within the meaning of article 12, and, if so, whether the author's deportation to the United Kingdom would bar him from re-entering "his own country", and, in the affirmative, whether this would be done arbitrarily. The Committee considered that there was no a priori indication that the author's situation could not be subsumed under article 12, paragraph 4, and therefore concluded that this issue should be considered on its merits.
7.6 As to the claims under articles 17 and 23 of the Covenant, the Committee observed that the issue whether a State was precluded, by reference to articles 17 and 23, from exercising a right to deport an alien otherwise, consistent with article 13 of the Covenant, should be examined on the merits.
7.7 The Committee noted the State party's request for clarification of the criteria that formed the basis of the Special Rapporteur's request for interim protection under rule 86 of the Committee's rules of procedure, as well as the State party's request that the Committee withdraw its request under rule 86. The Committee observed that what may constitute "irreparable damage" to the victim within the meaning of rule 86 cannot be determined generally. The essential criterion is indeed the irreversibility of the consequences, in the sense of the inability of the author to secure his rights should there later be a finding of a violation of the Covenant on the merits. The Committee may decide, in any given case, not to issue a request under rule 86 where it believes that compensation would be an adequate remedy. Applying these criteria to deportation cases, the Committee would require to know that an author would be able to return, should there be a finding in his favour on the merits.
8. On 18 March 1994 the Committee declared the communication admissible insofar as it might raise issues under article 12, paragraph 4, article 17 and article 23 of the Covenant.
State party's observations and author's comments
9.1 In its submission of 24 February 1995, the State party argues that Mr. Stewart has never acquired an unconditional right to remain in Canada as "his country". Moreover, his deportation will not operate as an absolute bar to his re-entry to Canada. A humanitarian review in the context of a future application to re-enter Canada as an immigrant is a viable administrative procedure that does not entail a reconsideration of the judicial decision of the Immigration Appeal Board.
9.2 Articles 17 and 23 of the Covenant cannot be interpreted as being incompatible with a State party's right to deport an alien, provided that the conditions of article 13 of the Covenant are observed. Under Canadian law, everyone is protected against arbitrary or unlawful interference with privacy, family and home as required by article 17. The State party submits that when a decision to deport an alien is taken after a full and fair procedure in accordance with law and policy, which are not themselves inconsistent with the Covenant, and in which the demonstrably important and valid interests of the State are balanced with the Covenant rights of the individual, such a decision cannot be found to be arbitrary. In this context the State party submits that the conditions established by law on the continued residency of non-citizens in Canada are reasonable and objective and the application of the law by Canadian authorities is consistent with the provisions of the Covenant, read as a whole.
9.3 The State party points out that the proposed deportation of Mr. Stewart is not the result of a summary decision by Canadian authorities, but rather of careful deliberation of all factors concerned, pursuant to full and fair procedures compatible with article 13 of the Covenant, in which Mr. Stewart was represented by counsel and submitted extensive argument in support of his claim that deportation would unduly interfere with his privacy and family life. The competent Canadian tribunals considered Mr. Stewart's interests and weighed them against the State's interest in protecting the public. In this context, the State party refers to the Convention relating to the Status of Refugees, which gives explicit recognition to the protection of the public against criminals and those who are security risks; it is submitted that these considerations are equally relevant in interpreting the Covenant. Moreover, Canada refers to the Committee's General Comment No. 15 on "The position of aliens under the Covenant", which provides that "It is for the competent authorities of the State party, in good faith and in the exercise of their powers, to apply and interpret the domestic law, observing, however, such requirements under the Covenant as equality before the law". It also refers to the Committee's Views in Communication No. 58/1979, Maroufidou v. Sweden, in which the Committee held that the deportation of Ms. Maroufidou did not entail a violation of the Covenant, because she was expelled in accordance with the procedure laid down by the State's domestic law and there had been no evidence of bad faith or abuse of power. The Committee held that in such circumstances, it was not within its competence to re-evaluate the evidence or to examine whether the competent authorities of the State had correctly interpreted and applied its law, unless it was manifest that they had acted in bad faith or had abused their power. In this communication there has been no suggestion of bad faith or abuse of power. It is therefore submitted that the Committee should not substitute its own findings without some objective reason to think that the findings of fact and credibility by Canadian decision makers were flawed by bias, bad faith or other factors which might justify the Committee's intervention in matters that are within the purview of domestic tribunals.
9.4 As to Canada's obligation under article 23 of the Covenant to protect the family, reference is made to relevant legislation and practice, including the Canadian Constitution and the Canadian Charter on Human Rights. Canadian law provides protection for the family which is compatible with the requirements of article 23. The protection required by article 23, paragraph 1, however, is not absolute. In considering his removal, the competent Canadian courts gave appropriate weight to the impact of deportation on his family in balancing these against the legitimate State interests to protect society and to regulate immigration. In this context the State party submits that the specific facts particular to his case, including his age and lack of dependents, suggest that the nature and quality of his family relationships could be adequately maintained through correspondence, telephone calls and visits to Canada, which he would be at liberty to make pursuant to Canadian immigration laws.
9.5 The State party concludes that deportation would not entail a violation by Canada of any of Mr. Stewart's rights under the Covenant.
10.1 In her submission dated 16 June 1995, counsel for Mr. Stewart argues that by virtue of his long residence in Canada, Mr. Stewart is entitled to consider Canada to be "his own country" for purposes of article 12, paragraph 4, of the Covenant. It is argued that this provision should not be subject to any restrictions and that the denial of entry to a person in Mr. Stewart's case would be tantamount to exile. Counsel reviews and criticizes relevant Canadian case law, including the 1992 judgement in Chiarelli v. M.E.I., in which the loss of permanent residence was likened to a breach of contract; once the contract is breached, removal can be effected. Counsel maintains that permanent residence in a country and family ties should not be dealt with as in the context of commercial law.
10.2 As to Mr. Stewart's ability to return to Canada following deportation, author's counsel points out that because of his criminal record, he would face serious obstacles in gaining readmission to Canada as a permanent resident and would have to meet the selection standards for admission to qualify as an independent immigrant, taking into account his occupational skills, education and experience. As to the immigration regulations, he would require a pardon from his prior criminal convictions, otherwise he would be barred from readmission as a permanent resident.
10.3 With regard to persons seeking permanent resident status in Canada, counsel refers to decisions of the Canadian immigration authorities that have allegedly not given sufficient weight to extenuating circumstances. Counsel further complains that the exercise of discretion by judges is not subject to review on appeal.
10.4 As to a violation of articles 17 and 23 of the Covenant, author's counsel points out that family, privacy and home are not concepts incorporated into the provisions of the Immigration Act. Therefore, although the immigration authorities can take into account family and other factors, they are not obliged by law to do so. Moreover, considerations of dependency have been limited to the aspect of financial dependency, as illustrated in decisions in the Langner v. M.E.I., Toth v. M.E.I. and Robinson v. M.E.I. cases.
10.5 It is argued that the Canadian authorities did not sufficiently take into account Mr. Stewart's family situation in their decisions. In particular, counsel objects to the evaluation by Canadian courts that Mr. Stewart's family bonds were tenuous, and refers to the unofficial transcript of the deportation hearings, in which Mr. Stewart stressed the emotionally supportive relationship that he had with his mother and brother. Mr. Stewart's mother confirmed that he helped her in caring for her youngest son. Counsel further criticizes the reasoning of the Immigration Appeal Division in the Stewart decision, which allegedly put too much emphasis on financial dependency: "The appellant has a good relationship with his mother who has written in support of him. But the appellant's mother has always lived independently of him and has never been supported by him. The appellant's younger brother is in a program for the disabled and is therefore taken care of by social services. As a matter of fact, there is no one depending on the appellant for sustenance and support ...". Counsel argues that emphasis on the financial aspect of the relationship does not take into account the emotional family bond and submits in support of her argument the report of Dr. Irwin Silverman, a psychologist, summarizing the complexity of human relationships. Moreover counsel cites from a book by Jonathan Bloom-Fesbach, The Psychology of Separation and Loss, outlining the long-term effects of breaking the family bond.
10.6 Counsel rejects the State party's argument that proper balancing has taken place between State interests and individual human rights.
Issues and proceedings before the Committee
11.1 This communication was declared admissible insofar as it might raise issues under article 12, paragraph 4, and articles 17 and 23 of the Covenant.
11.2 The Committee has considered the 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.
12.1 The question to be decided in this case is whether the expulsion of Mr. Stewart violates the obligations Canada has assumed under article 12, paragraph 4, and articles 17 and 23 of the Covenant.
12.2 Article 12, paragraph 4, of the Covenant provides: "No one shall be arbitrarily deprived of the right to enter his own country." This article does not refer directly to expulsion or deportation of a person. It may, of course, be argued that the duty of a State party to refrain from deporting persons is a direct function of this provision and that a State party that is under an obligation to allow entry of a person is also prohibited from deporting that person. Given its conclusion regarding article 12, paragraph 4, that will be explained below, the Committee does not have to rule on that argument in the present case. It will merely assume that if article 12, paragraph 4, were to apply to the author, the State party would be precluded from deporting him.
12.3 It must now be asked whether Canada qualifies as being "Mr. Stewart's country". In interpreting article 12, paragraph 4, it is important to note that the scope of the phrase "his own country" is broader than the concept "country of his nationality", which it embraces and which some regional human rights treaties use in guaranteeing the right to enter a country. Moreover, in seeking to understand the meaning of article 12, paragraph 4, account must also be had of the language of article 13 of the Covenant. That provision speaks of "an alien lawfully in the territory of a State party" in limiting the rights of States to expel an individual categorized as an "alien". It would thus appear that "his own country" as a concept applies to individuals who are nationals and to certain categories of individuals who, while not nationals in a formal sense, are also not "aliens" within the meaning of article 13, although they may be considered as aliens for other purposes.
12.4 What is less clear is who, in addition to nationals, is protected by the provisions of article 12, paragraph 4. Since the concept "his own country" is not limited to nationality in a formal sense, that is, nationality acquired on birth or by conferral, it embraces, at the very least, an individual who, because of his special ties to or claims in relation to a given country cannot there be considered to be a mere alien. This would be the case, for example, of nationals of a country who have there been stripped of their nationality in violation of international law and of individuals whose country of nationality has been incorporated into or transferred to another national entity whose nationality is being denied them. In short, while these individuals may not be nationals in the formal sense, neither are they aliens within the meaning of article 13. The language of article 12, paragraph 4, permits a broader interpretation, moreover, that might embrace other categories of long-term residents, particularly stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence.
12.5 The question in the present case is whether a person who enters a given State under that State's immigration laws and subject to the conditions of those laws can regard that State as his own country when he has not acquired its nationality and continues to retain the nationality of his country of origin. The answer could possibly be positive were the country of immigration to place unreasonable impediments on the acquiring of nationality by new immigrants. But when, as in the present case, the country of immigration facilitates acquiring its nationality and the immigrant refrains from doing so, either by choice or by committing acts that will disqualify him from acquiring that nationality, the country of immigration does not become "his own country" within the meaning of article 12, paragraph 4, of the Covenant. In this regard it is to be noted that while in the drafting of article 12, paragraph 4, of the Covenant the term "country of nationality" was rejected, so was the suggestion to refer to the country of one's permanent home.
12.6 Mr. Stewart is a British national both by birth and by virtue of the nationality of his parents. While he has lived in Canada for most of his life, he never applied for Canadian nationality. It is true that his criminal record might have kept him from acquiring Canadian nationality by the time he was old enough to do so on his own. The fact is, however, that he never attempted to acquire such nationality. Furthermore, even had he applied and been denied nationality because of his criminal record, this disability was of his own making. It cannot be said that Canada's immigration legislation is arbitrary or unreasonable in denying Canadian nationality to individuals who have criminal records.
12.7 This case would not raise the obvious human problems Mr. Stewart's deportation from Canada presents were it not for the fact that he was not deported much earlier. Were the Committee to rely on this argument to prevent Canada from now deporting him, it would establish a principle that might adversely affect immigrants all over the world whose first brush with the law would trigger their deportation lest their continued residence in the country convert them into individuals entitled to the protection of article 12, paragraph 4.
12.8 Countries like Canada, which enable immigrants to become nationals after a reasonable period of residence, have a right to expect that such immigrants will in due course acquire all the rights and assume all the obligations that nationality entails. Individuals who do not take advantage of this opportunity and thus escape the obligations nationality imposes can be deemed to have opted to remain aliens in Canada. They have every right to do so, but must also bear the consequences. The fact that Mr. Stewart's criminal record disqualified him from becoming a Canadian national cannot confer on him greater rights than would be enjoyed by any other alien who, for whatever reasons, opted not to become a Canadian national. Individuals in these situations must be distinguished from the categories of persons described in paragraph 12.4 above.
12.9 The Committee concludes that as Canada cannot be regarded as Mr. Stewart's "country", for the purposes of article 12, paragraph 4, of the Covenant, there could not have been a violation of that article by the State party.
12.10 The deportation of Mr. Stewart will undoubtedly interfere with his family relations in Canada. The question is, however, whether the said interference can be considered either unlawful or arbitrary. Canada's Immigration Law expressly provides that the permanent residency status of a non-national may be revoked and that that person may then be expelled from Canada if he or she is convicted of serious offences. In the appeal process the Immigration Appeal Division is empowered to revoke the deportation order "having regard to all the circumstances of the case". In the deportation proceedings in the present case, Mr. Stewart was given ample opportunity to present evidence of his family connections to the Immigration Appeal Division. In its reasoned decision the Immigration Appeal Division considered the evidence presented but it came to the conclusion that Mr. Stewart's family connections in Canada did not justify revoking the deportation order. The Committee is of the opinion that the interference with Mr. Stewart's family relations that will be the inevitable outcome of his deportation cannot be regarded as either unlawful or arbitrary when the deportation order was made under law in furtherance of a legitimate state interest and due consideration was given in the deportation proceedings to the deportee's family connections. There is therefore no violation of articles 17 and 23 of the Covenant.
13. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before the Committee do not disclose a violation of any of the provisions of the International Covenant on Civil and Political Rights.
APPENDIX
A. Individual opinion by Eckart Klein (concurring)
[Original: English]
Being in full agreement with the finding of the Committee that the facts of the case disclose neither a violation of article 12, paragraph 4, nor of articles 17 and 23 of the Covenant, for the reasons given in the view, I cannot accept the way how the relationship between article 12, paragraph 4, and article 13 has been determined. Although this issue is not decisive for the outcome of the present case, it could become relevant for the consideration of other communications, and I therefore feel obliged to clarify this point.
The view suggests that there is a category of persons who are not "nationals in the formal sense", but are also not "aliens within the meaning of article 13" (para. 12.4). While I clearly accept that the scope of article 12, paragraph 4, is not entirely restricted to nationals but may embrace other persons as pointed out in the view, I nevertheless think that this category of persons - not being nationals, but still covered by article 12, paragraph 4 - may be deemed to be "aliens" in the sense of article 13. I do not believe that article 13 deals only with some aliens. The wording of the article is clear and provides for no exceptions, and aliens are all non-nationals. The relationship between article 12, paragraph 4, and article 13 is not exclusive. Both provisions may come into play together.
I therefore hold that article 13 applies in all cases where an alien is to be expelled. Article 13 deals with the procedure of expelling aliens, while article 12, paragraph 4, and, under certain circumstances, also other provisions of the Covenant may bar deportation for substantive reasons. Thus, article 12, paragraph 4, may apply even though it concerns a person who is an "alien".
B. Individual opinion by Laurel B. Francis (concurring)
[Original: English]
This opinion is given against the background of my recorded views during the Committee's preliminary consideration of this case quite early in the session when I stated, inter alia, that: (a) Mr. Stewart was an "own country" resident under article 12 of the Covenant and (b) his expulsion under article 13 was not in violation of article 12, paragraph 4.
I will as far as possible avoid a discursive format in relation to the Committee's decision adopted on 1 November with respect to the question whether the expulsion of Mr. Stewart from Canada (under article 13 of the Covenant) violates the State party's obligation under article 12, paragraph 4, and articles 17 and 23 of the Covenant.
I should like to submit that:
1.Firstly, I concur with the reasons given by the Committee in paragraph 12.10 and the decision taken that there was no violation of articles 17 and 23 of the Covenant.
2.But, secondly, I do not agree with the Committee's restricted application of his "own country" concept at the fourth sentence of paragraph 12.3 of the Committee's decision under reference (That provision speaks of an "alien lawfully in the territory of a State party" in limiting the rights of States to expel an individual categorized as an "alien".) Does it preclude the expulsion of unlawful aliens? Of course not - falling as they do under another legal regime. I have made this point in order to suggest that the legal significance in relation to "an alien lawfully in the territory of a State party" as appears in the first line of article 13 of the Covenant, is related to the first line of article 12: "everyone lawfully in the territory of a State", which includes aliens, but it may be borne in mind that, in respect of a compatriot of Mr. Stewart lawfully in Canada on a visitor's visa (not being a permanent resident of Canada), he would not normally have acquired "own country" status as Mr. Stewart had and would be indifferent to the application of article 12, paragraph 4. But Mr. Stewart would certainly be concerned as indeed he has been.
3.Thirdly, were it intended to restrict the application of article 13 to exclude aliens lawfully in the territory of a State party who had acquired "own country" status, such exclusion would have been specifically provided in article 13 itself and not left to the interpretation of the scope of article 12, paragraph 4, which incontestably applies to nationals and other persons contemplated in the Committee's text.
4.In regard to "own country" status in its submission of
24 February 1995, the State party argues that "Mr. Stewart has never
acquired an unconditional
right to remain in Canada as his 'own country'.
Moreover his deportation will not operate as an absolute bar to his
re-entry to Canada. A humanitarian review in the context of the future
application to re-enter Canada as an immigrant is a viable administrative
procedure that does not entail reconsideration of the judicial decision of
the Immigration Appeal Board" (see 9.1).
Implicit in the foregoing is the admission that the State party recognizes Mr. Stewart's status as a permanent resident in Canada as his "own country". It is that qualified right applicable to such status which facilitated the decision to expel Mr. Stewart.
But for the foregoing statement attributable to the State party, we could have concluded that the decision taken to expel Mr. Stewart terminated his "own country" status in regard to Canada, but, in the light of such a statement, the "own country" status remains only suspended at the pleasure of the State party.
On the basis of the foregoing analysis, I am unable to support the decision of the Committee that Mr. Stewart had at no time acquired "own country" status in Canada.
C. Individual opinion by Elizabeth Evatt and Cecilia Medina Quiroga,