Alleged victim:                                The author

State party:                                                              Jamaica

Date of communication:                   5 January 1995 (initial submission)

Prior decision:                                  Special Rapporteur's rule 91 decision, transmitted to the State party on 23 January 1995

Date of decision on

admissibility:                                   7 October 1996

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

            Meeting on 31 March 1999,

            Having concluded its consideration of communication No. 614/1995 submitted to the Human Rights Committee by Samuel Thomas, under the Optional Protocol to the International Covenant on Civil and Political Rights,

            Having taken into account all written information made available to it by the author of the communication, 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 Samuel Thomas, a Jamaican citizen, who at 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 articles 6, 7, 9, 10, 14 and 17 of the International Covenant on Civil and Political Rights. He is represented by Jan Cohen of Mishcon de Reya. The author's death sentence has been commuted.

            * The following members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra N. Bhagwati, Mr. Thomas Buergenthal, Ms. Christine Chanet, Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar Gaitán de Pombo, Mr. Eckart Klein, Mr. Fausto Pocar, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski and Mr. Maxwell Yalden. The text of an individual opinion by Committee member Hipólito Solari Yrigoyen is appended to the present document.

The facts as submitted by the author

2.1       On 25 April 1990, the author and three co-defendants were convicted for the capital murder of one Elijah McLean, on 24 January 1989, and sentenced to death. The Court of Appeal of Jamaica dismissed their appeals on 16 March 1992. On 6 July 1994, the Judicial Committee of the Privy Council dismissed the author's petition for special leave to appeal. With this, it is submitted, all domestic remedies have been exhausted. Following the enactment of the Offences Against the Persons (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. The author's offence was reconfirmed as "capital".

2.2 The case for the prosecution was that the four accused were among seven men who entered the house of the deceased in the early morning of 24 January 1989, dragged him out of his bed, took him outside into the yard, and chopped him several times with their machetes, thereby killing him.

2.3 The prosecution relied upon the evidence of three relatives of the deceased, aged eleven, fourteen and seventeen, who lived at the deceased's house. They testified that they were awakened by sounds emanating from the room where the deceased and his common law wife were sleeping. They went to the doorway and saw one of the co-defendants (Byron Young) with a flashlight in one hand and a gun in the other pointing it at the deceased. Six other men, among whom they recognized the author, all carrying machetes, were standing by the bed of the deceased, and one of the men chopped him on his forehead. All seven men then pulled the deceased off the bed and carried him outside. The deceased held onto the door and was chopped on the hand by one of the men. The witnesses further testified that, in the yard, he was chopped several times by the men, including the author, while co-defendant Young stood in their midst with his gun still in his hand. All seven men then left.

2.4 The case for the defence was based on alibi. The author made an unsworn statement from the dock, maintaining that he was not present at the locus in quo and that he had no knowledge of the murder. The issue was therefore one of identification and the defence was solely directed at the witnesses' credibility and their ability, given the lighting in the room and the yard at the time of the incident, to correctly identify the author.

2.5 At the end of the judge's summing-up, the jury retired at 2:31 p.m. and returned at 3:14 p.m. to announce that they had not arrived at a unanimous verdict. The judge told them that he could not at that stage accept anything but a unanimous verdict, and the jury retired again at 3:16 p.m. They returned at 4:27 p.m. and the foreman again announced that they had not arrived at a unanimous verdict. The judge then stated: "I am afraid that this is not a case in which I can accept a majority verdict, this is a murder case and your verdict must be unanimous one way or the other. [...] None must be false to the oath that he has taken to return a true verdict, but in order to arrive at a collective verdict, a verdict upon which you all agree, there must necessarily be some giving and taking. There will be arguments [...], but at the same time there must be [...] certain adjustment of views. Each of you must listen to the voices of the other and don't be dogmatic about it [...]. None of you should be unwilling to listen to the argument of the other. If any of you have a strong view, or you are in a state of uncertainty, you are not obliged or entitled to sink your view and agree with the majority, but what I tell you to do is to argue out and discuss the matter together and see whether or not you can arrive at a unanimous verdict". The foreman then asked the judge a question relating to the evidence, and after having it explained, the jury retired at 4:41 p.m. They returned at 5:30 p.m. and the foreman announced that they had arrived at a unanimous verdict, finding all four accused guilty as charged.

2.6 Counsel forwards sworn affidavits from Terence Douglas and Daphne Harrison, two members of the jury who sat throughout the course of the trial and were present at the jury's deliberations.

            *         In his affidavit, dated 3 May 1990, Terence Douglas testifies that:"[...] On the last day of the trial - out of the twelve jurors - only three jurors found the men guilty. Because it was getting late and the foreman was pressuring us, we just told him to do what he wants. The foreman then stood up at 6:10 p.m. and said that he found all four men guilty. [...] After the case was dismissed I went outside and started to cry because I know that the four men are innocent, although the first day of the court was the first time I was seeing them. I would like the [Jamaican] Council [for Human Rights] to get a re-trial for these men because they did not get a fair trial."

            *         In her affidavit, dated 12 June 1990, Daphne Harrison testifies that: "[...] On our first deliberation, nine of us had come to the decision that the quality of the evidence was so poor and conflicting, that we saw no reason why the men should not be acquitted. After the foreman had informed the court that we could not arrive at a unanimous verdict, we were further addressed by the trial judge. However, on our second deliberation the situation remained the same. On our final deliberation, the nine - eight others and myself - held steadfast to our decision as we genuinely believed that the evidence was poor. However, as it was getting late and we had all wanted to go home, and the fact that we were becoming frustrated, we all turned to the foreman and two jurors and said: "Alright, you can all do whatever you want to do, but remember, we are not a party to any guilty verdict". The foreman then remarked: "I only hope that when I get out there none of you say anything". Mrs. Harrison further states that: "I am willing to attest to this statement in any court at anytime if I am required to do so".

2.7 The author's lawyer filed the grounds of appeal on 1 May 1990. The appeal of all four co-defendants to the Court of Appeal of Jamaica was based on the trial judge's failure, in his directions to the jury, to highlight certain discrepancies in the evidence of the prosecution witnesses, his direction to the foreman and members of the jury that their verdict must be unanimous one way or the other, the effect of which was said to have cajoled the jury into the verdict of guilty, and his direction to the jury on the issue of the unsworn statements made by all four co-defendants. As stated above, the Court of Appeal dismissed the appeals on 16 March 1992.

2.8 The author's petition for special leave to appeal to the Judicial Committee of the Privy Council was based, inter alia, on the following grounds:

            -          that the trial judge erred in his direction to the jury by over-stressing the need for unanimity and failed to advise the jury adequately of their right and duty to disagree, thereby causing the jury to be pressured into arriving at a unanimous verdict; and

            -          that there was a material irregularity in the course of the trial in that although nine of the twelve jurors intended to acquit the author, the foreman wrongly and improperly announced that a unanimous verdict of guilty had been reached against the author.

2.9 It is stated that the grounds concerning the material irregularities during the course of the jury's deliberations and their need to reach a unanimous verdict were raised before the Privy Council.

The complaint

3.1 Counsel points out that, since his conviction on 25 April 1990, the author has been held on death row at St. Catherine District Prison. He submits that to execute the author now after this lengthy delay of over six years would be in violation of article 7 of the Covenant, in that the delay would render the execution cruel, inhuman and degrading treatment, as recognised in the cases of Pratt and Morgan v. the Attorney-General of Jamaica, Catholic Commission for Justice and Peace in Zimbabwe v. the Attorney-General of Zimbabwe, and Soering v. United Kingdom. It is further submitted that the author has already been subjected to cruel, inhuman and degrading treatment or punishment by being held for such a substantial period of time in the appalling conditions that exist in the death row section of St. Catherine District Prison.

3.2 In respect of article 9, counsel refers to the delays in the judicial proceedings against the author, which are attributable to the State party. He points to the delay of nearly fourteen months between the date of the author's arrest (27 February 1989) and his trial (23 to 25 April 1990), a further delay of nearly twenty-three months between the date of conviction and sentence (25 April 1990) and the dismissal of his appeal (16 March 1992), and a further delay of nearly ten months between London solicitors accepting instructions to act on the author's behalf (13 May 1992) and the date of receipt of the trial transcript and written judgment of the Court of Appeal (8 March 1993), before it was possible to consider whether there were any grounds to appeal to the Judicial Committee of the Privy Council. In this context, counsel refers to his repeated requests to the Jamaican judicial authorities to provide him with the court documents in the author's case.

3.3 It is submitted that the author was held in police detention from the date of his arrest (27 February 1989) to the date of conviction and sentence (25 April 1990), and that, during this period, he was not segregated from convicted prisoners, nor was he subject to separate treatment appropriate to his status as an unconvicted person, in violation of article 10 of the Covenant. Furthermore, the author claims that, whilst in police detention, his right to receive visitors was interfered with, and he was badly beaten by police officers and threatened with further physical violence.

3.4 Counsel claims that the author's right to a fair trial was violated in that there was a material irregularity in the course of the trial because, although nine of the twelve jurors intended to acquit the author, the foreman wrongly and improperly announced that a unanimous verdict of guilty had been reached against the author. In this context, counsel refers to the above-mentioned sworn affidavits of the two jurors. The failure of the Court of Appeal to accept and rectify the errors and omissions relating to the trial judge's direction to the jury that their verdict had to be unanimous one way or the other, is said to amount to grave and substantial injustice, in violation of article 14 of the Covenant.

3.5 It is further submitted that the trial judge violated his obligations of impartiality by over stressing to the jury the need for unanimity, and by failing to advise the jury adequately as to their right and duty to disagree. Counsel reiterates that the trial judge, by stating that under no circumstances would he be prepared to accept a majority verdict (contrary to what he implied when the jury returned for the first time, when he stated that he could not accept anything but a unanimous verdict at that stage), caused the jury to be pressured into accepting the unanimous verdict as read out by the foreman.

3.6 Counsel points out that the author's lawyer filed the grounds of appeal on 1 May 1990, and that it took the Court of Appeal twenty-two months to hear and dismiss the appeal. This is said to amount to a violation of article 14, paragraph 3 (c), of the Covenant.

3.7 Reference is made to the findings of the Committee that the imposition of a sentence of death upon the conclusion of a trial in which the provisions of the Covenant have been breached constitutes, if no further appeal against sentence is available, a violation of article 6 of the Covenant. It is submitted that no further remedies are available to the author, and that, since the final sentence of death was passed without having met the requirements of the Covenant, article 6 has been violated in his case.

3.8       Finally, as to a violation of article 17, the author claims that his correspondence is repeatedly and unlawfully interfered with by the prison warders. In this respect, he claims that letters he has sent to the prison office have not reached the correct addressee.

State party's observations and counsel's comments thereon

4.         By submission of 18 May 1995, the State party submitted comments on the merits of the communication in order to expedite the consideration of the case. However, the State party promised information regarding investigations to be carried out into several of the author's allegations, which have not been forthcoming.

5.         On 28 July 1995, the author's counsel objected to the joint consideration of the admissibility and merits of the communication, as the State party had failed to address all the issues raised in the communication. However counsel forwarded comments on the State party's submission on those issues that had been addressed.

Committee's decision on admissibility

6.1       During the 58th session, the Human Rights Committee considered the admissibility of the communication.

6.2       The Committee had ascertained, as required under article 5, paragraph 2 (a), of the Optional Protocol, that the same matter was not being examined under another procedure of international investigation or settlement.

6.3       As to the requirement in article 5, paragraph 2 (b), of the Optional Protocol that domestic remedies be exhausted, the Committee noted that the Court of Appeal dismissed the author's appeal and that the Privy Council dismissed his application for leave to appeal. Therefore, with regard to the author's allegation that his trial was unfair because of the material irregularities in the deliberations of the jury, the way in which the verdict was reached and the trial judge's instructions to the jury telling them that they had to reach a unanimous verdict, the Committee was satisfied that domestic remedies had been exhausted for purposes of the Optional Protocol. The Committee further, considered that the allegations might raise issues under article 14 and consequently, of article 6, of the Covenant which needed to be examined on the merits.

6.4       With regard to the author's claim that his detention on death row amounts to a violation of articles 7 and 10 of the Covenant, the Committee referred to its prior jurisprudence that detention on death row does not per se constitute cruel, inhuman or degrading treatment in violation of articles 7 and 10 paragraph 1, of the Covenant, in the absence of some further compelling circumstances. The Committee observed that the author had not shown in what particular ways he was so treated as to raise an issue under articles 7 and 10 of the Covenant. This part of the communication was therefore inadmissible under article 2 of the Optional Protocol.

6.5       As to the claim of undue prolongation in the appeal proceedings, the Committee considered that the author and his counsel had sufficiently substantiated, for the purposes of admissibility, that the delay of twenty three months between his conviction and the dismissal of his appeal, might raise issues under article 14, paragraphs 3 (c) and 5 of the Covenant, which should be examined on the merits.

6.6       With regards to the author's allegation of ill-treatment while in pre-trial detention and his non-separation from convicted prisoners during this period, the Committee considered that the author's claim regarding his pre-trial detention might raise issues under article 10 of the Covenant, pending the outcome of the State party's investigations.

6.7       With regard to counsel's allegation that there has been an arbitrary interference with the author's mail, in violation of article 17, paragraph 1, the Committee considered that neither the author nor his counsel had sufficiently substantiated this claim for purposes of admissibility under article 2 of the Optional Protocol.

6.8       Consequently, on 17 October 1996 the Human Rights Committee declared that the communication was admissible in so far as it might raise issues under articles 6; 9, paragraph 3; 10; 14 paragraphs 1, 3 (c) and 5.

State party's observations on the merits and counsel's comments thereon

7.1       In a submission dated 6 June 1997, the State party informed the Committee it had been unable to investigate the author's allegation that he was beaten by a police officer, in the absence of additional information, such as the place where the author was held, the time at which the incidents allegedly occurred and if possible the name(s) of the officers involved. Until this information was received the State party would be unable to investigate the allegations.

7.2       With respect to the allegation that the author was not segregated from convicted prisoners while detained, the State party contends that since the author refers to "police detention" it must refer to a police station or remand facility for persons awaiting trial. Convicted offenders are not held in these facilities unless there has been a short delay in transferring them to a correctional institution. The committee is asked to note that in the parish in which the author was tried, Clarendon, there is no institution in which convicted persons can be detained without creating major security risks.

7.3       The State party denies any breach of the Covenant in respect of the 23 months delay between conviction and the dismissal of the appeal in violation of articles 14, paragraph 3 (c), and 14 paragraph 5, although it concedes that this period is longer than desirable.

7.4       With regard to the author's allegation that his trial was unfair because of the material irregularities in the deliberations of the jury, the way in which the verdict was reached and the trial judge's instructions to the jury telling them that they had to reach a unanimous verdict. The State party contends that with respect to the issue of the judge's instructions to the jury this has been received by two appellate courts. The State party further submits that the Committee's own jurisprudence on this subject is that it is for appellate courts to review such instructions, and only in particular circumstances will the Committee conduct a review. The State party considers that these particular circumstances as defined by the Committee do not arise in this case and therefore it asserts that this issue is not one over which the Committee should assume jurisdiction.

7.5       As to the question of jury deliberation and the manner in which the verdict was arrived at, the State party denies that this is a breach for which the State party can be held accountable. The jury members were clearly aware of their duty and obviously understood correctly the judge's instruction; they chose to disregard those instructions. They knew they were entitled to disagree if they felt strongly on the issue, but chose not to do so. To say that the State party is responsible because some jurors were tired and wanted to go home and therefore did not insist that they had reasonable doubts, is uncalled for. The jurors, were aware that a man was on trial and if convicted could lose his life. Their failure to discharge their duties according to their conscience and beliefs, having heard the evidence, cannot be laid at the door of the State. The State party further contends that the jury system is based on the presumption that having heard all the evidence with an open mind, those called on to do so will render a verdict in good faith according to their view of the evidence. Where persons choose not to do so for their own reasons, the fault does not lie with the State.

8.         By submission dated 14 January 1998, counsel addressed several questions to the State party in respect of the observations he had submitted to the State party's admissibility submission. He requested confirmation that a preliminary enquiry had taken place, additional information in respect of when Mr. Thomas was brought before a judge and the establishment of a prima face case against the author. He also requested information in respect of the investigations the State party claimed it was carrying out in respect of the author's allegations of beatings and having been held in detention with convicted prisoners while awaiting his own trial. He also requested clarification in respect of what the State party's means when it states that in the parish where the author was kept there is no facility for keeping convicted persons.

Examination of the merits

9.1       The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided for in article 5, paragraph 1, of the Optional Protocol.

9.2       The author has put forward two complaints in respect article 10 of the Covenant, a) ill-treatment while in police detention and, b) non segregation from convicted prisoners while in police detention. The Committee notes that the author's allegations in respect of the treatment he was subjected to while in police detention are very vague (see paragraph 3.3 supra), and considers that it is incumbent upon an alleged victim to provide sufficient information, in order that a State party may investigate an allegation. In this respect, the Committee also notes that the State party did in fact request additional information in order to investigate the claims. In the Committee's opinion, the information provided by the author and his counsel in respect of the conditions described in paragraph 3.3. are insufficient for a State party to be able to adequately investigate the matter. Consequently, the Committee considers that neither the author nor his counsel have sufficiently substantiated a claim under article 3 of the Covenant in respect to the alleged violation of article 10 paragraph 1.

9.3       The author has claimed that he was not separated from convicted prisoners while in police detention, however no further substantiation has been provided in this respect. The Committee notes the State party's information that in the parish in which the author was tried there is no institution capable of holding convicted prisoners. The Committee considers that the author's claim has not been sufficiently substantiated and given the State party's denial, and on the basis of the information before it. The Committee is unable to find that there has been a violation of article 10, paragraph 2.

9.4       The issue before the Committee in respect to article 14 is whether the judge's insistence that the jury must reach a unanimous verdict and the alleged material irregularities in the jury's deliberations constituted a violation of the Covenant. The Committee observes that the issue of the judge's summing up to the jury and his emphasis that the jury reach a unanimous verdict was examined by the Court of Appeal of Jamaica and the Judicial Committee of the Privy Council, and that both instances found the instructions to be acceptable. It is not for the Committee to review the findings of these bodies in the absence of any indication that their conclusions were arbitrary or otherwise amounted to a denial of justice. Consequently, there has been no violation of article 14 of the Covenant.

9.5        The author has claimed that the period of 23 months from his conviction to the hearing of his appeal constitutes a breach of article 14, paragraph 3 (c), and 5, of the Covenant. The Committee reiterates that all guarantees under article 14 of the Covenant should be strictly observed in any criminal procedure, particularly in capital cases, and notes with regard to the period of 23 months between trial and appeal that the State party has conceded that such a delay is undesirable, but that it has not offered any further explanation. In the absence of any circumstances justifying the delay, the Committee finds that with regard to this period there has been a violation of article 14, paragraph 3 (c), in conjunction with paragraph 5, of the Covenant.

9.6       However, with regard to the period of nearly fourteen months which lapsed from the author's arrest (27 February 1989) to his trial (23 to 25 April 1990), the Committee notes that the State party has not addressed the issue, nonetheless it considers that this delay does not in the overall circumstances of the case constitute a violation of article 9, paragraph 3.

10.       The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 14, paragraphs 3 (c), and 5, of the Covenant.

11.       In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Mr. Samuel with an effective remedy, entailing compensation. The State party is under an obligation to ensure that similar violations do not occur in the future.

12.       On becoming a State party to the Optional Protocol, Jamaica recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not. This case was submitted for consideration before Jamaica's denunciation of the Optional Protocol became effective on 23 January 1998; in accordance with article 12(2) of the Optional Protocol it continues to be subject to the application of the Optional Protocol. Pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals with its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established. The Committee wishes to receive from the State party, within ninety days, information about the measures taken to give effect to the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

APPENDIX

Individual opinion Hipólito Solari Yrigoyen

(dissenting)

            The following is the Committee member's version of how paragraphs 6.4 and 9.4 of the decision should have read.

6.4       The author's lawyer has maintained that his detention on death row in St. Catherine District Prison constitutes cruel and inhuman treatment, both because of the time spent there and because of the general conditions of detention, which he describes as "frightful" in paragraph 3.1. In this connection it should be pointed out that although, in accordance with the Committee's jurisprudence, time is not a factor which causes the detention to constitute a violation of the Covenant, this is not the case with conditions of detention. In the present case the State has not refuted the specific allegations about the treatment received by the author in breach of article 7 and article 10, paragraph 1, of the Covenant and it has not provided any information on this point, despite the obligation imposed on it by article 4, paragraph 2, of the Optional Protocol. Moreover, in the present case the State party has not fulfilled its obligation to indicate whether the prison regime and the treatment of the detainee are in conformity with the provisions of article 10 of the Covenant. Because of these significant circumstances the complaint should be upheld. The Committee considers that the author has been the victim of cruel treatment denying him the respect due to the inherent dignity of a human being, in breach of the provisions of the International Covenant on Civil and Political Rights already mentioned in this paragraph.

9.4       The author's counsel considers that his right to a fair trial was violated, in contravention of article 14 of the Covenant. He claims in paragraph 3.4 that the jury foreman committed a "material irregularity" by announcing a unanimous guilty verdict when no such verdict had been reached, and in paragraph 3.5 he argues that the trial judge violated his obligation of impartiality by overstressing to the jury the need for unanimity, without advising the members of the jury about their right and duty to disagree, and by stating that under no circumstances would he be prepared to accept a majority verdict. The State party points out that it could not be held responsible if the members of the jury did not do their duty in accordance with their conscience and beliefs, having heard the evidence and accordingly denies that there was a violation attributable to it. It contends that if, for their own personal reasons, the members of the jury do not render a verdict in good faith in accordance with their view of the evidence the fault does not lie with the State. Notwithstanding these arguments, it must be pointed out that it is the State's responsibility to provide for competent, independent and impartial courts of justice established by law to produce a determination of any criminal charge, in accordance with article 14 of the Covenant.

            The sworn statements of jury members Terence Douglas and Daphne Harrison, brought to the Committee's attention by the author's counsel and not rebutted by the State party, show that the foreman acted irregularly by pressuring the members of the jury to deliver a unanimous verdict, when nine of them believed that the author was not guilty and only three believed the opposite, and that moreover the change made in the announcement of the verdict shows that the author did not enjoy the due process accorded to defendants in criminal cases by article 14 of the Covenant. This circumstance is particularly serious in view of the fact that the verdict announced as having been reached by the jury amounts to a death sentence for the convicted person. The confirmation of the verdict by the Appeal Court supports the view that the accused did not have a fair trial. In the Committee's opinion, the irregularities described above constitute a violation of the rights contained in article 14 of the Covenant.

(Signed) Hipólito Solari Yrigoyen

[Done in English, French and Spanish, the Spanish text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

          I. Communication No. 616/1995, Hamilton v. Jamaica

              (Views adopted on 23 July 1999, sixty-sixth session)

Submitted by:                                   Zephiniah Hamilton (represented by counsel of the London law firm Macfarlanes)

Alleged victim:                                The author

State party:                                       Jamaica

Date of communication:                   6 January 1995

Date of decision on

admissibility:                                   7 July 1997

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

            Meeting on 23 July 1999,

            Having concluded its consideration of communication No. 616/1995 submitted to the Human Rights Committee by Mr. Zephiniah Hamilton under the Optional Protocol to the International Covenant on Civil and Political Rights,

            Having taken into account all written information made available to it by the author of the communication and the State party,

            Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.         The author of the communication is Mr. Zephiniah Hamilton, 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 articles 6; 7; 9, paragraph 3; 10 and 14, paragraphs 1, 3 (c) and 5, of the International Covenant on Civil and Political Rights. He is represented by a counsel of the London law firm, Macfarlanes. The author's death sentence has been commuted.

The facts as submitted by the author

2.1       The author was arrested on 28 March 1989 and charged with the murders of Lynval Henry and Robert Bell, which had occurred on 13 October 1988. The preliminary enquiry was held in May 1990. On 24 December 1991, the author was found guilty as charged and sentenced to death. The Court of Appeal of Jamaica dismissed his appeal on 12 October 1992. A further application for special leave to appeal to the Judicial Committee of the Privy Council has not been filed and there has been no appeal to the Supreme (Constitutional) Court of Jamaica.

2.2       The author was convicted by the jury of murder as being part of a joint enterprise; the two victims were attacked in the evening, in the presence of two other men, one of whom gave evidence that he recognised the author, as a person known to him from childhood, and the other of whom said that he had seen the author on previous occasions. The author's defence, based on an alibi and mistaken identity (supported by an unsworn statement) was rejected by the jury.

2.3       At the time of the original communication the author was under sentence of death. His appeal to the Court of Appeal of Jamaica was dismissed two days before the Offences against the Persons (Amendment) Act 1992 came into force; the communication also included a detailed submission about the classification procedure under that Act, leading to a complaint of violations of articles 6 and 14 paragraph 1, and 5, of the Covenant, with full supporting argument. The commutation of the author's sentence by the Governor-General has made it unnecessary to deal with these issues in detail.

The complaint

3.1       Counsel explains that the author was shot, in the lower area of his spine by a police officer after a hearing by the Magistrate as part of the Preliminary Enquiry. He had, for other reasons, been in hospital prior to his arrest. He was then readmitted to hospital, because of the injury to his back, where he spent three months between his arrest and his trial. As a long term outcome, as a result of this, he is paralysed in both legs and is unable to move from his cell unless he is carried by other inmates. He is also unable to remove his slop bucket from the cell himself and he has therefore been obliged to pay other inmates to remove it. This means that sometimes it has to remain in his cell until he has obtained the necessary funds. The author complained several times to the superintendent about the conditions in which he is kept, to no avail. Furthermore, the London solicitors wrote twice to the Prison Governor on Mr. Hamilton's behalf, requesting him to ensure that the author is given proper assistance to enable him to leave his cell for some period during each day, and also to make proper arrangements for his slop bucket to be removed from his cell daily. To date no reply has been received. Counsel refers to a 1993 report from a non-governmental organisation in which it is stated that, although the Parliamentary Ombudsman seems to make a genuine effort to address the problems in the prisons of Jamaica, his office does not have sufficient funding to be effective, and the Ombudsman has no powers of enforcing his recommendations which are non-binding. Therefore, counsel argues, the office of the Parliamentary Ombudsman does not provide an effective remedy in the circumstances of the author's case. It is submitted that the author's rights under articles 7 and 10 of the Covenant have been violated, because of the prison authorities' failure to take into account the author's paralysed condition and to make proper arrangements for him. The lack of proper care is also said to be in violation of the UN Standard Minimum Rules for the treatment of Prisoners.

3.2       Counsel points out that the author was arrested on 28 March 1989, but was not tried until 24 December 1991, and that it took a further ten months before his appeal was heard and dismissed. The delay of thirty-three months between arrest and conviction is said to amount to a violation of articles 9, paragraph 3, and 14, paragraph 3 (c).

4.         On May 11, 1995 the communication was transmitted to the State party, with a request to submit to the Committee information and observations in respect of the admissibility of the communication. As of July 1997 no reply had been received.

Committee's decision on admissibility

5.1       During its 60th session the Committee considered the admissibility of the communication.

5.2       The Committee noted with concern the absence of co-operation from the State party on the matter under consideration. In particular, it observed that the State party had failed to provide information on the question of admissibility of the communication. On the basis of the information before it the Committee found that it was not precluded from considering the communication under article 5, paragraph 2 (a), of the Optional Protocol.

5.3       The Committee noted that the State party had not contested the admissibility of the author's allegations about the conditions of his detention at St. Catherine District Prison which have been aggravated by his handicap. In the circumstances, the Committee found that the author and his counsel had met the requirements of article 5, paragraph 2 (b), of the Optional Protocol in this respect, and made no finding about the complaint under articles 6 and 14, paragraphs 1, and 5 (as having been overtaken by the commutation of the death sentence), but considered that the allegations might raise issues under articles 10, paragraph 1 and also articles 9, paragraph 3, and 14, paragraph 3 (c), of the Covenant.

States party's observations on the merits and counsel's comments

6.1       In a submission dated 28 September 1998, the State party informed the Committee that with respect to the allegation of violations of article 9, paragraph 3, and article 14, paragraph 3, (c) due to the delays between arrest and trial and trial and appeal, it denied that those periods were so prolonged as to constitute undue delay, since a preliminary enquiry was held over several sessions between arrest and trial thereby mitigating any potential delay.

6.2       With regard to the alleged breach of article 10 , paragraph 1, due to the circumstances of the author's detention and the difficulties he is experiencing because of his disability, the State party contends that since the author is no longer on death row the conditions in which he is now detained will facilitate his movements more effectively. This is subject to the fact that the prison is not designed to accommodate disabled persons, therefore special arrangements have to be put in place to assist these persons.

6.3       The State party also responded to points concerning the classification process.

7.1       By submission dated 22 December 1998, counsel reiterates his affirmation that articles 9, paragraph 3, and 14, paragraph 3, (c) have been violated since there was a 33 month delay between the author's arrest and his trial, he rejects the State party's contention that a preliminary enquiry heard within that period mitigates any "potential delay".

7.2       Counsel has provided a copy of the "report of investigation" in respect of the author's complaint against special constable Mendez, which reflects contradictory versions of the shooting incident in which the author was injured. It also contains a note from the Police Public Complaints Authority recommending that proceedings be initiated against Special Constable Mendez for wounding with intent.

7.3       With regard to the State party's information that since the author is no longer on death row and that therefore the conditions of his detention have improved, counsel argues that the author continues to need someone to slop out for him and since what money he had was confiscated by a prison guard he is in an untenable position. Counsel reiterates that the author does not receive a low fat diet as prescribed by the doctor. He also points out the author's fear of being transferred to the prison hospital since he could become the victim of a homosexual assault and his disability would impede him from defending himself.

7.4       Furthermore, counsel reaffirms that no special arrangements have been put in place to accommodate the author in prison. In this respect he points out that since the author's disability is so severe that he will never present a threat to society he should be transferred to a rehabilitation centre.

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       With regard to the author's complaints with respect to his conditions of detention at St. Catherine's District Prison, the Committee notes that the author has made very precise allegations, relating to the difficulties he has encountered as a disabled person ( see paragraph 3.1 supra). All of this has not been contested by the State party, except to say that measures would have to be put in place to accommodate the author as a disabled person in prison. In the Committee's opinion, the conditions described in para 3.1, are such as to violate the author's right to be treated with humanity and with respect for the inherent dignity of the human person, and are therefore contrary to article 10, paragraph 1.

8.3       The author has claimed a violation of articles 9, paragraph 3, and 14 paragraph 3 (c) in that he was not tried without undue delay, since there were 33 months between the author's arrest on 28 March 1989 and his trial on 24 December 1991. The Committee notes that the State party contends that since a preliminary hearing was held in that period this constituted a mitigating circumstance and consequently rejects any violation of the Covenant. Nevertheless, the Committee is of the view that the mere affirmation that a delay does not constitute a violation is not sufficient explanation. The Committee therefore finds that 33 months between arrest and trial does not comply with the minimum guarantees required by the Covenant. Consequently, and in the circumstances of the case the Committee finds that there has been a violation of articles 9, paragraph 3 and 14, paragraph 3 (c).

9.         The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 10, paragraph 1, 9, paragraph 3, and 14, paragraph 3 (c), of the Covenant.

10.       In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Mr. Hamilton with an effective remedy, entailing compensation and placement in conditions that take full account of his disability. The State party is under an obligation to ensure that similar violations do not occur in the future.

11.       On becoming a State party to the Optional Protocol, Jamaica recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not. This case was submitted for consideration before Jamaica's denunciation of the Optional Protocol became effective on 23 January 1998; in accordance with article 12(2) of the Optional Protocol it continues to be subject to the application of the Optional Protocol. Pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals with its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established. The Committee wishes to receive from the State party, within ninety days, information about the measures taken to give effect to the Committee's Views. The State party is requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

        J. Communication No. 618/1995, Campbell v. Jamaica

            (Views adopted on 20 October 1998, sixty-fourth session)

Submitted by:                                   Barrington Campbell (represented by Mr. George Brown from Nabarro Nathanson, a law firm in London)

Victim:                                             The author

State party:                                       Jamaica

Date of communication:                   10 January 1995 (initial submission)

Date of decision on

admissibility:                                   20 October 1998

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

            Meeting on 20 October 1998,

            Having concluded its consideration of communication No. 618/1995 submitted to the Human Rights Committee by Mr. Barrington Campbell, under the Optional Protocol to the International Covenant on Civil and Political Rights,

            Having taken into account all written information made available to it by the author of the communication, 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 Barrington Campbell, a Jamaican citizen at the time of submission awaiting execution at St. Catherine District Prison, Jamaica. He claims to be a victim of violations by Jamaica of articles 7, 10, paragraph 1, and 14, paragraphs 3(b)(d) and (e), of the International Covenant on Civil and Political Rights. He is represented by George Brown of Nabarro Nathanson, a law firm in London.

Facts as submitted by the author

2.1       The author was taken into custody on 30 March 1989. On 12 April 1989, he was put on an identification parade and he was subsequently arrested and charged with the murder, on 23 March 1989, of one Paul Vassell. The preliminary enquiry was held in early July 1989. On 8 March 1990, the author was found guilty as charged and sentenced to death in the Kingston Home Circuit Court. On 13 March 1990, he applied for leave to appeal against conviction and sentence. While treating the application for leave to appeal as the hearing of the appeal, the Court of Appeal of Jamaica dismissed the appeal on 27 April 1992; the written judgment was made available on 17 February 1993. A further petition for special leave to appeal to the Judicial Committee of the Privy Council was dismissed on 12 December 1994. With this, it is submitted, all domestic remedies have been exhausted. The author's death sentence was commuted to life imprisonment in 1995.

2.2       The case for the prosecution was that, on 23 March 1989, at approximately 7:00 p.m., after having attended a meeting at the Seventh Day Baptist Church in Kingston, Paul Vassell took a machete out of his car and re-entered the premises of the church together with eye-witness Karl Bowen and two other men. The four men walked along a passage-way to the rear of the church, where they were approached by two men, who ordered them to put their hands up, and asked for their money. Mr. Bowen testified during the trial that he observed a man, whom he later identified as the author, armed with a shotgun. He complied with the order while his two companions ran off. However, Mr. Vassell, who was holding the machete, attacked the gunman alleged to be the author, who retreated in the passage-way. While Mr. Bowen was held at gun point by the author's companion, the author and Mr. Vassell moved out of sight, the latter still chopping at his assailant. Mr. Bowen further testified that he then heard someone screaming, the sound of running feet and of a shotgun, and that the author re-appeared still carrying his shotgun and with his left hand bleeding. Mr. Bowen was told to run and as he made his escape he came across the body of Mr. Vassell, lying at the entrance to the church in a pool of blood.

2.3       A police officer testified that the author's left thumb was bandaged when he was taken into custody on 30 March 1989. Furthermore, the investigating officer testified that, after having cautioned him on 10 April 1989, the author admitted that he had shot the deceased. Further evidence against the author was the fact that, at an identification parade held on 12 April 1989, Mr. Bowen picked him out as one of the participants in the robbery.

2.4       The defence was based on alibi and mistaken identity. The author made a sworn statement, testifying that at the time of the incident he was on his way to his then girlfriend's home at Seaforth, in the parish of St. Thomas, and that he had injured his hand when chopping a coconut.

2.5       In respect of the author's then girlfriend, Norma Lewis, one of the police officers testified during the trial that he had taken a statement from her on 7 April 1989. It appears from the trial transcript that at the preliminary enquiry, Miss Lewis' statement was submitted as part of the prosecution's case, but that the prosecution later decided not to call her. It further appears that on 26 February 1990, the author's attorney requested the judge to adjourn the trial and asked for Norma Lewis to be subpoenaed. The trial was then adjourned and the witness subpoenaed. She appeared late on the first day of the trial, and had left before counsel had a chance to speak to her. On the second and last day of the trial, after the close of the prosecution's case, the attorney again sought an adjournment for 15 minutes because he had not had a chance to interview the witness, and the author had instructed him to do so. The hearing was adjourned from 12:15 p.m. to 1:25 p.m.; upon resumption, the author gave his sworn evidence and no further mention is made of Miss Lewis.

2.6       The trial transcript further reveals that the attorney who represented the author at trial had also assisted him during the identification parade upon the author's request. On appeal, the author was represented by two different attorneys. Although they argued only one ground of appeal on the author's behalf (relating to the issue of provocation), the Court of Appeal, taking into account the nature of the case, also considered the visual identification evidence and the trial judge's directions thereon.

The complaint

3.1       As to a violation of article 7 of the Covenant, counsel points out that Mr. Campbell has been on death row for almost five years. With reference to the decision of the Judicial Committee of the Privy Council in the case of Earl Pratt and Ivan Morgan v. The Attorney-General for Jamaica, it is submitted that the "agony of suspense" resulting from such long awaited and expected death amounts to cruel, inhuman and degrading treatment.

3.2       As to a further violation of article 7, and of article 10, paragraph 1, of the Covenant, counsel refers to the reports of non-governmental organisations concerning the conditions of detention at St. Catherine District Prison. In this context, it is submitted that the prison is holding more than twice the capacity for which it was constructed in the 19th century; that the facilities provided by the State are scant: no mattresses, other bedding or furniture in the cells; no integral sanitation in the cells; broken plumbing, piles of refuse and open sewers; no artificial lighting in the cells and only small air vents through which natural light can enter; almost no employment available to inmates; and no doctor attached to the prison so that medical problems are generally treated by warders who receive very limited training. The particular impact of these general conditions upon Mr. Campbell are said to be that he is confined to his cell for twenty-two hours of each and every day; that his cell is very small, dirty and infested with rats and cockroaches; that he spends most of his time isolated from other men, with nothing whatsoever to keep him occupied, and that much of his time is spent in enforced darkness.

3.3       Counsel further refers to article 36 of the UN Standard Minimum Rules for the Treatment of Prisoners, and submits that due to the constant fear of reprisals from warders, it is extremely difficult and risky for inmates to complain about ill-treatment. In this context, the author claims in a letter addressed to London counsel, dated 7 March 1994, that "[...] I am not safe at any time [...] over the years they (the warders) have killed a lot of death row inmates. In 1988, they kill one, in 1990 they kill three and last year they kill four at Constant Spring Police Station and seeing that what I saw happen on the 31 October and I gave a written statement to the police so that alone make me more vulnerable to these warders [...] my life is threatened mostly because I am a witness against the warders".

3.4       On 18 April 1994, counsel wrote to the Parliamentary Ombudsman and to the Commissioner of Corrections, requesting an investigation into the author's allegations and an undertaking that he will be protected from such threats and attacks in the future. In spite of a reminder, the Ombudsman never replied, and the Commissioner of Corrections merely informed counsel, by letter of 27 April 1994, that: "It is clear to all correctional officers that excessive force, threats and brutality is not condoned, and if and when this is found, the strongest disciplinary action is taken". On 19 May 1994, counsel requested the Commissioner of Corrections what measures had been taken in respect of Mr. Campbell's case, to which he again received a reply in general terms.

3.5       Counsel submits that he and the author made all reasonable efforts to seek redress in respect of the ill-treatment suffered by the author, and that the domestic complaints process, and in particular the internal prison process, is not an available nor an effective remedy in the author's case.

3.6       As to the preparation of the author's defence at trial, it is stated that the attorney was assigned to the author through legal aid. According to counsel, it is clear that the attorney had not seen the author in conference before the start of the trial, had taken no instructions on the statements of the prosecution witness, and failed to interview an alibi witness.

3.7       In this context, it is submitted that the evidence Miss Norma Lewis could have given would have confirmed the author's alibi, i.e. that he was in Seaforth, a town some seven to eight miles away from Kingston, and that he was there from 8:00 p.m. onwards, whereas the shooting took place around 7:00 p.m. The attorney's failure or refusal to call Miss Lewis as a witness, in spite of the relevance and importance of her evidence, is said to amount to a violation of article 14, paragraphs 3(b) and (e).

3.8       In respect of violations of article 14, paragraph 3(d), the author claims that prior to the identification parade he was taken to the CID office on two occasions with the possibility that he was seen by Mr. Bowen. It is submitted that his attorney failed to cross-examine properly the officer who conducted the identification parade as to the author's movements prior to the parade, and failed to cross-examine Mr. Bowen adequately or at all on this point. Counsel concludes that the way in which the identification parade was conducted was not in accordance with the Jamaica Constabulary Force Act 1939 and its 1977 amendment.

3.9       It is further submitted that the author's attorney failed to cross-examine the investigating officers adequately or consistently as to whether the alleged admission by the author was ever made or whether it was made as a result of oppression.

3.10 Finally, it is submitted that the attorney failed to examine in chief the author about the alleged admission and the circumstances that gave rise to it. The author's rights under article 14, paragraph 3(d), are further said to have been violated by the two legal aid attorneys who represented him on appeal, since they allegedly failed to discuss the case with him prior to the hearing, and therefore did not take his instructions. In this context, reference is made to the Committee's findings in communication No. 356/1989 (Trevor Collins v. Jamaica), and to the case of R. v. Clinton, where counsel's decision not to call the defendant or witnesses to rebut identification evidence resulted in the conviction being quashed.

State party's submission and counsel's comments

4.1     In its observations, the State party does not raise any objection to admissibility and offers comments on the merits of the communication, in order to expedite the consideration of the case.

4.2     With regard to the claim that there is a violation of article 7 of the Covenant, because of the length of time spent on death row, the State party points out that a reasonable length of time must be allowed for the exhaustion of domestic remedies by a convicted person, including the hearing of appeals as well as hearings by international human rights bodies. The State party takes the view that the time spent on death row while the author was exhausting his appeals is not unreasonable, and argues that it should not be held in violation of article 7 because it allows a convicted person to exhaust all available remedies before the sentence of death is carried out.

4.3     Concerning the conditions of detention in St. Catherine District Prison, the State party asserts that efforts are being made to improve the conditions. It refers to a report by the Inter-American Commission on Human Rights following a visit to Jamaican prisons in December 1994.

4.4     In respect of the way the author's attorney conducted the defence, the State party points out that all issues relating to the preparation and handling of a case fall within the ambit of the relationship between an attorney and his client. The State does not interfere in the conduct of the defence by counsel for the accused. A decision on whether or not to call a witness is a matter of judgement for counsel and decisions made by counsel in his best judgement cannot engage the responsibility of the State. Likewise, in respect of the allegation that the author had no time to prepare his defence, the State party asserts that there was no act or omission on its part to prevent him and his counsel from preparing the case adequately. The State party therefore denies any breaches of article 14 (3)(b) and (e).

4.5     With regard to the author's claim under article 14 (3) (d), because he did no see his counsel before the hearing of the appeal, the State party submits that there is no evidence that counsel withdrew any grounds or argued that the appeal had no merit. According to the State party, the conduct of the appeal is a matter between counsel and his client. The State party denies that there has been a breach of article 14 (3)(d).

5.1     In his comments on the State party's submission, counsel argues that the Privy Council's ruling in Pratt & Morgan applies to the author, since the author has been on death row for over 5 years.

5.2     In respect of the conditions of detention, counsel notes that the State party has not challenged the author's description of the conditions.

5.3     With regard to counsel's conduct of the defence at trial or on appeal, it is argued that the State party must bear the responsibility for the conduct of counsel, since it provides legal aid at such a low rate of remuneration that the defence is inadequately resourced and counsel who accept instructions in capital cases are under such intense pressure of work that they cannot properly or adequately represent their clients.

5.4     Counsel has no objection to the Committee considering both admissibility and merits at this stage.

Issues and proceedings before the Committee

6.1     Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with article 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

6.2     The Committee has ascertained, as required under article 5, paragraph 2(a), of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

6.3     The Committee notes that the State party has forwarded comments on the merits of the communication and that it has not challenged the admissibility of the communication. The Committee considers the communication admissible and proceeds, without further delay, to an examination of the substance of the claims in the light of all the information made available to it by the parties, as required by article 5, paragraph 1, of the Optional Protocol.

7.1     The author has claimed that his continued detention on death row in itself, as well the conditions of this detention, constitute a violation of articles 7 and 10, paragraph 1, of the Covenant. The Committee reaffirms its constant jurisprudence that detention on death row for a specific period - in this case for about five years before the sentence was commuted - does not violate the Covenant in the absence of further compelling circumstances.

7.2     Mr. Campbell also alleges that he is detained in particularly bad and insalubrious conditions on death row. There is lack of sanitation, light, ventilation and bedding. He is in his cell 22 hours a day, his cell is infested with rats and cockroaches, and he is isolated from others. Furthermore, the author has claimed that he has been threatened by warders and that the State party has taken no measures to protect him. The author's claims have not been refuted by the State party. The Committee considers that the conditions of detention described by the author and his counsel are such as to violate Mr. Campbell's right to be treated with humanity and respect for the inherent dignity of his person, and are thus contrary to article 10, paragraph 1.

7.3     The author has claimed that the bad quality of the defence put forward by his counsel at trial resulted in depriving him of a fair trial. Reference has been made in particular to counsel's alleged failure to interview the author's girlfriend, and to his alleged failure to cross-examine properly the prosecution witnesses in relation to the conduct of the identification parade and in relation to the author's alleged oral statement. The Committee recalls its jurisprudence that the State party cannot be held accountable for alleged errors made by a defence lawyer, unless it was or should have been manifest to the judge that the lawyer's behaviour was incompatible with the interests of justice. The material before the Committee does not show that this was so in the instant case and consequently, there is no basis for a finding of a violation of article 14, paragraph 3(b) (d) and (e), in this respect.

7.4     With regard to counsel's claim that the author was not effectively represented on appeal, the Committee notes that the author's legal representatives on appeal argued grounds for appeal. The Committee recalls its jurisprudence that under article 14, paragraph 3(d), the court should ensure that the conduct of a case by a lawyer is not incompatible with the interests of justice. In the instant case, nothing in the conduct of the appeal by the author's representatives shows that they were exercising other than their professional judgement, in the interest of their client. Accordingly, the Committee concludes that the information before it does not show a violation of article 14, paragraph 3(d), in respect to the author's appeal.

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 10, paragraph 1, of the Covenant.

9.       Under article 2, paragraph 3(a), of the Covenant, the State party is under an obligation to provide Barrington Campbell with an effective remedy, including compensation. The State party is under an obligation to take measures that similar violations not occur.

10.     On becoming a State party to the Optional Protocol, Jamaica recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not. This case was submitted for consideration before Jamaica's denunciation of the Optional Protocol became effective on 23 January 1998; in accordance with article 12(2) of the Optional Protocol it is subject to the continued application of the Optional Protocol. Pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established. The Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

        K. Communication No. 628/1995, Tae Hoon Park v. Republic of Korea

            (Views adopted on 20 October 1998, sixty-fourth session)

Submitted by:                                   Tae Hoon Park (represented by Mr. Yong-Whan Cho of Duksu Law Offices in Seoul)

Victim:                                             The author

State party:                                       Republic of Korea

Date of communication:                   11 August 1994

Date of decision on

admissibility:                                   5 July 1996

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

            Meeting on 20 October 1998,

            Having concluded its consideration of communication No. 628/1995 submitted to the Human Rights Committee by Tae Hoon Park, 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 Mr. Tae-Hoon Park, a Korean citizen, born on 3 November 1963. He claims to be a victim of a violation by the Republic of Korea of articles 18, paragraph 1, 19, paragraphs 1 and 2, and 26 of the Covenant. He is represented by Mr. Yong-Whan Cho of Duksu Law Offices in Seoul. The Covenant and the Optional Protocol thereto entered into force for the Republic of Korea on 10 July 1990.

The facts as submitted by the author

2.1       On 22 December 1989, the Seoul Criminal District Court found the author guilty of breaching paragraphs 1 and 3 of article 7 of the 1980 National Security Law and sentenced him to one year's suspended imprisonment and one year's suspension of exercising his profession. The author appealed to the Seoul High Court, but in the meantime was conscripted into the Korean Army under the Military Service Act, following which the Seoul High Court transferred the case to the High Military Court of Army. The High Military Court, on 11 May 1993, dismissed the author's appeal. The author then appealed to the Supreme Court, which, on 24 December 1993, confirmed the author's conviction. With this, it is argued, all available domestic remedies have been exhausted. In this context, it is stated that the Constitutional Court, on 2 April 1990, declared that paragraphs 1 and 5 of article 7 of the National Security Law were constitutional. The author argues that, although the Court did not mention paragraph 3 of article 7, it follows from its decision that paragraph 3 is likewise constitutional, since this paragraph is intrinsically woven with paragraphs 1 and 5 of the article.

2.2       The author's conviction was based on his membership and participation in the activities of the Young Koreans United (YKU), during his study at the University of Illinois in Chicago, USA, in the period 1983 to 1989. The YKU is an American organization, composed of young Koreans, and has as its aim to discuss issues of peace and unification between North and South Korea. The organization was highly critical of the then military government of the Republic of Korea and of the US support for that government. The author emphasizes that all YKU's activities were peaceful and in accordance with the US laws.

2.3       The Court found that the YKU was an organization which had as its purpose the commission of the crimes of siding with and furthering the activities of the North Korean Government and thus an "enemy-benefiting organization". The author's membership in this organization constituted therefore a crime under article 7, paragraph 3, of the National Security Law. Moreover, the author's participation in demonstrations in the USA calling for the end of US' intervention constituted siding with North Korea, in violation of article 7, paragraph 1, of the National Security Law. The author points out that on the basis of the judgment against him, any member of the YKU can be brought to trial for belonging to an "enemy-benefiting organization".

2.4       From the translations of the court judgments in the author's case, submitted by counsel, it appears that the conviction and sentence were based on the fact that the author had, by participating in certain peaceful demonstrations and other gatherings in the United States, expressed his support or sympathy to certain political slogans and positions.

2.5       It is stated that the author's conviction was based on his forced confession. The author was arrested at the end of August 1989 without a warrant and was interrogated during 20 days by the Agency for National Security Planning and then kept in detention for another 30 days before the indictment. The author states that, although he does not wish to raise the issue of fair trial in his communication, it should be noted that the Korean courts showed bad faith in considering his case.

2.6       Counsel submits that, although the activities for which the author was convicted took place before the entry into force of the Covenant for the Republic of Korea, the High Military Court and the Supreme Court considered the case after the entry into force. It is therefore argued that the Covenant did apply and that the Courts should have taken the relevant articles of the Covenant into account. In this connection, the author states that, in his appeal to the Supreme Court, he referred to the Human Rights Committee's Comments after consideration of the initial report submitted by the Republic of Korea under article 40 of the Covenant (CCPR/C/79/Add.6), in which the Committee voiced concern about the continued operation of the National Security Law; he argued that the Supreme Court should apply and interpret the National Security Law in accordance with the recommendations made by the Committee. However, the Supreme Court, in its judgment of 24 December 1993, stated:

"Even though the Human Rights Committee established by the International Covenant on Civil and Political Rights has pointed out problems in the National Security Law as mentioned, it should be said that NSL does not lose its validity simply due to that. ... Therefore, it can not be said that punishment against the defendant for violating of NSL violates international human rights regulation or is contradictory application of law without equity." (translation by author)

The complaint

3.1       The author states that he has been convicted for having opinions critical of the situation in and the policy of South Korea, which are deemed by the South Korean authorities to have been for the purpose of siding with North Korea only on the basis of the fact that North Korea is also critical of South Korean policies. The author argues that these presumptions are absurd and that they prevent any freedom of expression critical of government policy.

3.2       The author claims that his conviction and sentence constitute a violation of articles 18, paragraph 1, 19, paragraphs 1 and 2, and 26, of the Covenant. He argues that although he was convicted for joining an organization, the real reason for his conviction was that the opinions expressed by himself and other YKU members were critical of the official policy of the South Korean Government. He further contends that, although freedom of association is guaranteed under the Constitution, the National Security Law restricts the freedom of association of those whose opinions differ from the official government policy. This is said to amount to discrimination in violation of article 26 of the Covenant. Because of the reservation made by the Republic of Korea, the author does not invoke article 22 of the Covenant.

3.3       The author requests the Committee to declare that his freedom of thought, his freedom of opinion and expression and his right to equal treatment before the law in exercising freedom of association have been violated by the Republic of Korea. He further requests the Committee to instruct the Republic of Korea to repeal paragraphs 1, 3 and 5, of article 7 of the National Security Law, and to suspend the application of the said articles while their repeal is before the National Assembly. He further asks to be granted a retrial and to be pronounced innocent, and to be granted compensation for the violations suffered.

State party's observations and counsel's comments

4.1       By submission of 8 August 1995, the State party recalls that the facts of crime in the author's case were, inter alia, that he sympathized with the view that the United States is controlling South Korea through the military dictatorship in Korea, along with other anti-state views.

4.2       The State party argues that the communication is inadmissible for failure to exhaust domestic remedies. In this context, the State party notes that the author has claimed that he was arrested without a warrant and arbitrarily detained, matters for which he could have sought remedy through an emergency relief procedure or through an appeal to the Constitutional Court. Further, the State party argues that the author could demand a retrial if he has clear evidence proving him innocent or if those involved in his prosecution committed crimes while handling the case.

4.3       The State party further argues that the communication is inadmissible since it deals with events that took place before the entry into force of the Covenant and the Optional Protocol.

4.4       Finally, the State party notes that on 11 January 1992 an application was made by a third party to the Constitutional Court concerning the constitutionality of article 7, paragraphs 1 and 3, of the National Security Law. The Constitutional Court is at present reviewing the matter.

5.1       In his comments on the State party's submission, counsel for the author notes that the State party has misunderstood the author's claims. He emphasizes that the possible violations of the author's rights during the investigation and the trial are not at issue in the present case. In this context, counsel notes that the matter of a retrial has no relevance to the author's claims. He does not challenge the evidence against him, rather he contends that he should not have been convicted and punished for these established facts, since his activities were well within the boundaries of peaceful exercise of his freedom of thought, opinion and expression.

5.2       As regards the State party's argument that the communication is inadmissible ratione temporis, counsel notes that, although the case against the author was initiated before the entry into force of the Covenant and the Optional Protocol, the High Military Court and the Supreme Court confirmed the sentences against him after the date of entry into force. The Covenant is therefore said to apply and the communication to be admissible.

5.3       As regards the State party's statement that the constitutionality of article 7, paragraphs 1 and 3, of the National Security Law, is at present being reviewed by the Constitutional Court, counsel notes that the Court on 2 April 1990 already decided that the articles of the National Security Law were constitutional. Later applications concerning the same question were equally dismissed by the Court. He therefore argues that a further review by the Constitutional Court is devoid of chance, since the Court is naturally expected to confirm its prior jurisprudence.

Committee's decision on admissibility

6.1       At its 57th session, the Committee considered the admissibility of the communication.

6.2       The Committee noted the State party's argument that the communication was inadmissible since the events complained of occurred before the entry into force of the Covenant and its Optional Protocol. The Committee noted, however, that, although the author was convicted in first instance on 22 December 1989, that was before the entry into force of the Covenant and the Optional Protocol thereto for Korea, both his appeals were heard after the date of entry into force. In the circumstances, the Committee considered that the alleged violations had continued after the entry into force of the Covenant and the Optional Protocol thereto and that the Committee was thus not precluded ratione temporis from examining the communication.

6.3       The Committee also noted the State party's arguments that the author had not exhausted all domestic remedies available to him. The Committee noted that some of the remedies suggested by the State party related to aspects of the author's trial which did not form part of his communication to the Committee. The Committee further noted that the State party had argued that the issue of the constitutionality of article 7 of the National Security Law was still pending before the Constitutional Court. The Committee also noted that the author had argued that the application to the Constitutional Court was futile, since the Court had already decided, for the first time on 2 April 1990, and several times since, that the article was compatible with the Korean Constitution. On the basis of the information before it, the Committee did not consider that any effective remedies were still available to the author within the meaning of article 5, paragraph 2(b), of the Optional Protocol.

6.4       The Committee ascertained, as required under article 5, paragraph 2(a), of the Optional Protocol, that the same matter was not being examined under another procedure of international investigation or settlement.

6.5       The Committee considered that the facts as submitted by the author might raise issues under articles 18, 19 and 26 of the Covenant that need to be examined on the merits.

7.         Accordingly, on 5 July 1996 the Human Rights Committee decided that the communication was admissible.

State party's observations concerning the merits and counsel's comments thereon

8.1       In its observations, the State party notes that the author has been convicted for a transgression of national laws, after a proper investigation bringing to light the undisputed facts of the case. The State party submits that in spite of the precarious security situation it has done its utmost to guarantee fully all basic human rights, including the freedom to express one's thoughts and opinions. The State party notes, however, that the overriding necessity of preserving the fabric of its democratic system requires protective measures.

8.2       The Korean Constitution contains a provision (article 37, paragraph 2) stipulating that "the freedoms and rights of citizens may be restricted by law only when necessary for national security, the maintenance of law and order and for public welfare." Pursuant to the Constitution, the National Security Law contains some provisions which may partially restrict individuals' freedoms or rights. According to the State party, a national consensus exists that the NSL is indispensable to defend the country against the North Korean communists. In this connection, the State party refers to incidents of a violent nature. According to the State party, it is beyond doubt that the author's activities as a member of YKU, an enemy benefitting organization that endorses the policies of the North Korean communists, constituted a threat to the preservation of the democratic system in the Republic of Korea.

8.3       In respect to the author's argument that the Court should have applied the provisions of the Covenant to his case, the State party submits that the "author was convicted not because the Court intentionally precluded the application of the Covenant but because it was a matter of necessity to give the NSL's provisions priority over certain rights of individuals as embodied in the Covenant in view of Korea's security situation."

9.1       In his comments on the State party's submission, counsel argues that the fact that the State party is in a precarious security situation has no relation with the author's peaceful exercise of his right to freedom of thought, opinion, expression and assembly. Counsel argues that the State party has failed to establish any relation between the North Korean communists and the YKU or the author, and has not provided any sound explanation about which policies of the North Korean communists the YKU or the author endorsed. According to counsel, the State party has likewise failed to show what kind of threat the YKU or the author's activities posed to the security of the country.

9.2       It is submitted that the author joined the YKU as a student with aspiration for democracy and peaceful unification of his country. In his activities, he never had any intention to give benefit to North Korea or put the security of his country in danger. According to counsel, the kind of opinion expressed by the author can be rebutted by discussion and debate, but, as far as such expression is discharged in a peaceful manner, it should never be suppressed by criminal prosecution. In this context, counsel submits that it is not for the State to assume the role of divine judge about what is the truth or the false and the good or the evil.

9.3       Counsel maintains that the author was punished for his political opinion, thought and peaceful expression thereof. He also claims that his right to equal protection before the law under article 26 of the Covenant was denied. In this connection, he explains that this is so because, while every citizen is guaranteed to enjoy the right to freedom of association under article 21 of the Constitution, the author was punished and thereby subjected to discrimination for joining the YKU which had allegedly different political opinions than those of the Government of the Republic of Korea.

9.4       The author refers to the report on the mission to the Republic of Korea by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. The author requests the Committee to recommend to the Government to publish its Views on the communication and its translation into Korean in the Official Gazette.

Issues and proceedings before the Committee

10.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol.

10.2 The Committee takes note of the fact that the author has not invoked article 22 of the Covenant, related to freedom of association. As a reason for not invoking the provision, counsel has referred to a reservation or declaration by the Republic of Korea according to which article 22 shall be so applied as to be in conformity with Korean laws including the Constitution. As the author's complaints and arguments can be addressed under other provisions of the Covenant, the Committee need not on its own initiative take a position to the possible effect of the reservation or declaration. Consequently, the issue before the Committee is whether the author's conviction under the National Security Law violated his rights under articles 18, 19 and 26 of the Covenant.

10.3 The Committee observes that article 19 guarantees freedom of opinion and expression and allows restrictions only as provided by law and necessary (a) for respect of the rights and reputation of others; and (b) for the protection of national security or public order (ordre public), or of public health or morals. The right to freedom of expression is of paramount importance in any democratic society, and any restrictions to the exercise of this right must meet a strict test of justification. While the State party has stated that the restrictions were justified in order to protect national security and that they were provided for by law, under article 7 of the National Security Law, the Committee must still determine whether the measures taken against the author were necessary for the purpose stated. The Committee notes that the State party has invoked national security by reference to the general situation in the country and the threat posed by “North Korean communists”. The Committee considers that the State party has failed to specify the precise nature of the threat which it contends that the author's exercise of freedom of expression posed and finds that none of the arguments advanced by the State party suffice to render the restriction of the author's right to freedom of expression compatible with paragraph 3 of article 19. The Committee has carefully studied the judicial decisions by which the author was convicted and finds that neither those decisions nor the submissions by the State party show that the author's conviction was necessary for the protection of one of the legitimate purposes set forth by article 19 (3). The author's conviction for acts of expression must therefore be regarded as a violation of the author's right under article 19 of the Covenant.

10.4 In this context, the Committee takes issue with the State party's statement that the "author was convicted not because the Court intentionally precluded the application of the Covenant but because it was a matter of necessity to give the NSL's provisions priority over certain rights of individuals as embodied in the Covenant in view of Korea's security situation." The Committee observes that the State party by becoming a party to the Covenant, has undertaken pursuant to article 2, to respect and to ensure all rights recognized therein. It has also undertaken to adopt such legislative or other measures as may be necessary to give effect to these rights. The Committee finds it incompatible with the Covenant that the State party has given priority to the application of its national law over its obligations under the Covenant. In this context, the Committee notes that the State party has not made the declaration under article 4(3) of the Covenant that a public emergency existed and that it derogated certain Covenant rights on this basis.

10.5 In the light of the above findings, the Committee need not address the question of whether the author's conviction was in violation of articles 18 and 26 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, finds that the facts before it disclose a violation of article 19 of the Covenant.

12.       Under article 2, paragraph 3(a), of the Covenant, the State party is under the obligation to provide Mr. Tae-Hoon Park with an effective remedy, including appropriate compensation for having been convicted for exercising his right to freedom of expression. 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 ninety days, information about the measures taken to give effect to the Committee's Views. The State party is requested to translate and publish the Committee's Views and in particular to inform the judiciary of the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

          L. Communication No. 633/1995, Gauthier v. Canada

              (Views adopted on 7 April 1999, sixty-fifth session)

Submitted by:                                     Robert W. Gauthier

Alleged victim:                                   The author

State party:                                         Canada

Date of communication:                     5 December 1994

Date of decision on

admissibility:                                      10 July 1997

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

            Meeting on 7 April 1999,

            Having concluded its consideration of communication No.633/1995 submitted to the Human Rights Committee by Mr. Robert W. Gauthier under the Optional Protocol to the International Covenant on Civil and Political Rights,

            Having taken into account all written information made available to it by the author of the communication, and the State party,

            Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.         The author of the communication is Robert G. Gauthier, a Canadian citizen. He claims to be a victim of a violation by Canada of article 19 of the Covenant.

The facts as presented by the author

2.1       The author is publisher of the National Capital News, a newspaper founded in 1982. The author applied for membership in the Parliamentary Press Gallery, a private association that administers the accreditation for access to the precincts of Parliament. He was provided with a temporary pass that gave only limited privileges. Repeated requests for equal access on the same terms as other reporters and publishers were denied.

2.2       The author points out that a temporary pass does not provide the same access as a permanent membership, since it denies inter alia listing on the membership roster of the Press Gallery, as well as access to a mailbox for the receipt of press communiques.

2.3       As regards the exhaustion of domestic remedies, the author explains that he has filed numerous requests, not only with the Press Gallery, but also with the Speaker of the House, all to no avail. According to the author, no reasons have been given for denying him full access. The author applied to the Federal Court for a review of the decision of the Press Gallery, but the Court decided that it did not have jurisdiction over decisions of the Press Gallery since it is not a department of the Government of Canada. A complaint filed with the Bureau of Competition Policy, arguing that the exclusion of the National Capital News from equal access constituted unfair competition was dismissed.

2.4       The author then initiated an action in the Provincial Court against the Speaker of the House of Commons, requesting a declaration by the court that the denial of access to the precincts of Parliament on the same terms as members of the Canadian Parliamentary Press Gallery infringed the author's right to freedom of the press as provided in the Canadian Charter of Rights and Freedoms. The Court ruled, on 30 November 1994, that the decision of the Speaker not to permit the author to have access to the facilities in the House of Commons that are used by members of the Press Gallery was made in the exercise of a parliamentary privilege and therefore not subject to the charter or to review by the Court.

2.5       The author points out that he has been trying to obtain equal access to press facilities in Parliament since 1982, and he argues therefore that the application of domestic remedies is unreasonably prolonged, within the meaning of article 5, paragraph 2(b), of the Optional Protocol. He also expresses doubts about the effectiveness of the appeal.

The complaint

3.         The author claims that the denial of equal access to press facilities in Parliament constitutes a violation of his rights under article 19 of the Covenant.

State party's observations

4.1       By submission of 28 November 1995, the State party argues that the communication is inadmissible.

4.2       The State party recalls that the author runs an Ottawa based publication, the National Capital News, which is issued with varying degrees of regularity.

4.3       The Canadian Parliamentary Press Gallery is a private, independent, voluntary association formed for the purpose of bringing together media professionals whose principal occupation is the reporting, interpreting and editing of news about Parliament and the federal Government.

4.4       The Speaker of the House of Commons is the guardian of the rights and privileges of the House and its members, and as such, by virtue of parliamentary privilege, has exclusive control over those parts of the Parliamentary precincts occupied by the House of Commons. One of his responsibilities in this regard is controlling access to these areas.

4.5       The State party explains that all Canadian citizens enjoy access to Parliament, which is obtained by means of a pass, of which there are different types. The press pass provides access to the media facilities of Parliament and is issued automatically to accredited members of the Press Gallery.

4.6       The State party explains that there is no formal, official or legal relationship between the Speaker and the Press Gallery. The Press Gallery has been accommodated by the Speaker by maintaining the media facilities of Parliament, such as working space, telephones, access to the Library and Restaurant and the provision of designated seating in the public galleries. The Speaker has no involvement with the day-to-day operations of these facilities, which are independently run by the Press Gallery.

4.7       The State party points out that most of the Press Gallery's facilities are located off Parliament Hill and thus outside the Parliament's precincts. The State party also notes that live television coverage of all proceedings in the House of Commons is available throughout Canada and many journalists thus seldom actually use the media facilities of Parliament.

4.8       The Press Gallery knows several categories of membership, the most relevant being the active and temporary membership. Active membership allows access to all media facilities of Parliament for as long as the member meets the criteria, that is for as long as he or she works for a regularly published newspaper and requires access to the media facilities as part of his or her primary occupation of reporting Parliamentary or federal Government news. To those who do not meet these criteria the Press Gallery grants temporary membership which is granted for a defined period and provides access to substantially all of the media facilities of Parliament, except for access to the Parliamentary Restaurant.

4.9       According to the State party, the author has applied several times for membership in the Press Gallery since founding the National Capital News in 1982. His requests for active membership have not been granted, because the Gallery has been unable to ascertain whether he satisfies the criteria. Temporary membership was given to him instead, which was renewed on several occasions. In this context, the State party points out that the author has been uncooperative in providing the Press Gallery information about the regularity of his newspaper. Without such information necessary to see whether the author fulfils the criteria for active membership, the Gallery cannot admit him as a full member.

4.10 The author has requested that the Speaker of the House of Commons intervene on his behalf. The position of the Speaker's office being one of strict non-interference with Press Gallery matters, the Speaker declined to intervene. The State party emphasizes that at all times the author has enjoyed access to the precincts of Parliament, and access to the media facilities of Parliament during the periods of time when he had a temporary membership card of the Press Gallery.

4.11 The State party submits that the author has instituted several proceedings against the refusal of the Press Gallery to grant him active membership. In 1989, he filed a complaint with the Bureau of Competition Policy, which concluded that the Competition Act had not been contravened. In October 1991, the author's application for judicial review of this decision was denied by the Federal Court since the decision was not reviewable. In 1990, the Federal Court dismissed an application by the author for judicial review of the Press Gallery's decision not to grant him active membership, since the Court lacked jurisdiction.

4.12 An action against the Press Gallery in the Ontario Court (General Division) is still pending. In this action, the author seeks damages of $5 million.

4.13 On 30 November 1994, the Ontario Court (General Division) struck out the action brought by the author against the Speaker of the House of Commons, in which he sought a declaration that "the denial of access to the precincts of Parliament on the same terms as members of the Canadian Parliamentary Press Gallery" infringed his right to freedom of the press as guaranteed in the Canadian Charter of Rights and Freedoms. The Court based itself on jurisprudence that the exercise of inherent privileges of a Canadian legislative body is not subject to Charter review. The author has filed a Notice of Appeal against this decision with the Ontario Court of Appeal, but has not as yet filed the required documentation in proper form.

4.14 The State party argues that the communication is inadmissible for non-exhaustion of domestic remedies. The State party notes that the focus of the author's communication, against the Speaker of the House of Commons, is misdirected since the Speaker's policy has been to administer access to the media facilities of Parliament based on the Press Gallery's determinations regarding membership. Determination of membership is entirely within the jurisdiction of the Press Gallery and lies outside the competence of the Speaker. According to the State party, the suggestion that the Speaker should override the Press Gallery's internal affairs would undermine freedom of the press. Since the source of the author's complaint is the Press Gallery's refusal to grant him active membership, the State party is of the opinion that the author has failed to exhaust the remedies available to him in this regard.

4.15 The State party submits that the author's failure to cooperate with the Press Gallery constitutes a clear failure to exhaust remedies available to him domestically. The State party further notes that legal proceedings against the Press Gallery are still ongoing in the Ontario Court (General Division) and that the author's appeal against the order of the Ontario Court (General Division) striking out his action against the Speaker of the House of Commons remains unresolved, pending his satisfaction of procedural requirements.

4.16 Moreover, the State party argues that the communication is inadmissible for failure to substantiate the allegation that the failure to grant the author full membership of the Press Gallery amounts to a denial of his rights under article 19 of the Covenant. In this context, the State party recalls that the author has never been denied access to the Parliamentary precincts, and that he has had access to the media facilities of Parliament whenever he was in possession of a temporary press pass. The author has not shown any instance in which he has been frustrated in his ability to gain access to or disseminate information about Parliament.

The author's comments on the State party's submission

5.1       In a submission, dated 17 January 1996, the author informs the Committee that he has been prohibited access to the media facilities in Parliament (since he has no press pass). The author explains that while the visitors gallery is open to him, it is of little value to a professional journalist as one is not allowed to take notes when seated in the visitors gallery.

5.2       The author further states that the Press Gallery has obtained a Court order, dated 8 January 1996, that prohibits him from entering its premises. The author acknowledges that these premises are located off Parliament Hill, but states that the Government press releases and other material provided in the Press Gallery's premises are funded by the taxpayers of Canada and form part of the facilities and services provided by the Government for the media.

6.1       In his comments on the State party's submission, dated 5 February 1996, the author contends that the State party's reply consists of false or incomplete information and numerous misleading statements.

6.2       He submits that although no powers or authority have been legally transferred from Parliament or the Government of Canada to the Canadian parliamentary Press Gallery, the Gallery assumes powers to permit or deny access to the facilities and services provided by the Parliament and Government of Canada to the media. The author states that his numerous requests for access were presented to the Press Gallery without success, and that he made repeated applications to the Administrative Officials within the Parliament for access to the media facilities, also without success. His attempts to have the matter remedied by the Courts have also been unsuccessful.

6.3       The author submits that he has been trying to have a solution to his denial of access to the media facilities since 1982, when he founded his newspaper, and argues that the application of domestic remedies should be considered as unreasonably prolonged. In this context, the author points to "the history of deliberate and contrived delays, failure to reply to or even acknowledge reasonable requests for information and assistance, and the evidence that these delays will continue".

6.4       In addition, the author states that the possibility of achieving an effective remedy in Canada within the foreseeable future does not exist. In this context, he notes that the measures to prevent him from exercising his profession have only increased in the recent past, as is shown by the notice denying him access to the Press Gallery premises, the conviction against him for trespassing on the premises of the Press Gallery, the conviction against him for trespassing on Parliament Hill, and the Court order prohibiting him access to the premises of the Press Gallery, that is to the "publicly subsidized facilities and services provided by the Government of Canada for the media".

6.5       The author also states that "the Canadian Parliamentary Press Gallery, while maintaining that it is bending over backwards to allow access to the facilities and services provided for the media by the Government of Canada continues to enforce the Court-ordered injunction prohibiting access for the Publisher of the National Capital News to any of these public facilities and services - now in addition to being denied access to information the author is also under the threat of contempt of Court should he attempt to even seek equal access as his competitors enjoy to information specifically and purposely provided for the media, domestic and foreign, by the Government and Parliament of Canada".

6.6       The author complains about the ridicule and trivializing to which he has been subjected. He refers to a Federal Court Justice who compared the author with "Don Quixote, tilting at windmills", a Provincial Court Justice who commented to him: "You seem to take offence at every slight", as well as the State party's reply to the Human Rights Committee, which according to him trivializes the matter brought before the Committee. In his opinion, this shows that he will never be able to obtain an effective remedy in Canada.

6.7       The author contests the State party's statement that live television coverage of all the activities in the House of Commons is available.

6.8       The author takes issue with the State party's suggestion that his conflict is with a private organization. He states that his complaint is that he has been denied access to the facilities and services provided for the media by the Parliament and Government of Canada, by Canadian officials and Courts. He adds that "the pretext that such access requires membership in conjunction with a group of self-anointed journalists calling themselves the Canadian Parliamentary Press Gallery is not material to this issue for the purposes of article 19(2) of the Covenant". He points out that the Press Gallery has been incorporated in 1987 in order to limit the personal liability of its members, and that in practice it controls access to the media facilities provided by Canada. However, in the author's opinion he is under no obligation to meet prior conditions established by the Press Gallery that limit his freedom of expression. The author also submits that the media facilities in Parliament are staffed by government employees and that the office equipment is owned by the government.

6.9       The author states that he publishes The National Capital News "with a regularity more than appropriate to satisfy the definition of what constitutes newspapers". He claims that no proper application procedure for membership of the Gallery exists and that access is granted or withheld at whim. According to the author, the Press Gallery at no time seriously considered his application and did not review the information he provided. In this context, he claims that a list of the dates of publication of his newspapers was withheld from the members of the Press Gallery. He contests the State party's assertion that he failed to cooperate with the Press Gallery. He further claims that the Speaker of the House of Commons can intervene in situations involving journalists and has done so in the past.

6.10 Further, the author states that he was given daily passes in 1982-83, which were later converted to weekly and then monthly passes. Only in 1990 was he granted a six month temporary membership. He states that he returned the temporary membership since it did not grant him equal access. The author states that temporary membership denied him the right to vote, to ask questions at press conferences, to have a mail slot for receiving all the information available to active members and a listing on the membership list. According to the author, as a result "there was no assurance that all the information would be provided to the author and any information that was sent individually by people to whom the membership list was circulated would not include the author".

6.11 The author states that on 4 January 1996, the Ontario Court dismissed his action against the Press Gallery. The author states that he will be appealing the judgment, but that the proceedings are unreasonably prolonged and thus no obstacle to the admissibility of his communication. Moreover, he states that his communication is directed against the State party, and that his action against the Press Gallery can thus not be a remedy to be exhausted for purposes of the Optional Protocol. The author adds that he has discontinued his appeal against the 30 November 1994 judgment of the Ontario Court concerning his claim against the Speaker of the House of Commons, since it is accurate that the Courts have no jurisdiction over Parliament.

6.12 As regards the State party's assertion that he has not made a prima facie case, the author states that the State party has prohibited him access to the premises of the Press Gallery in the Parliament Buildings, and that it has not intervened to allow access for the author to the Press Gallery premises outside the precincts of Parliament. According to the author it is evident that the State party "has no desire or intention to respect its responsibilities and obligations to abide by article 19(2)".

State party's further submission

7.1       By submission of 25 October 1996, the State party provides some clarifications and acknowledges that the author was denied access to the Parliamentary precincts from 25 July 1995 until 4 August 1995, following an incident on 25 July after which he was charged with trespass for attempting to enter the Press Gallery in Parliament. He was convicted for trespassing on 26 April 1996 and on 9 July 1996 his appeal was dismissed.

7.2       The State party explains that although the author has access to the Parliamentary buildings, he does not have access to the premises of the Press Gallery located in the buildings of Parliament. However, there is no Court order prohibiting him this access; the Court order only relates to the premises of the Press Gallery located off Parliament Hill.

7.3       The State party provides a copy of the judgment by the Ontario Court (General Division) of 4 January 1996, in which it was decided that there was no genuine issue for trial in the author's action against the Press Gallery. The judge found, on the basis of uncontradicted affidavit evidence, that the privileges (access to the media facilities in Parliament) the author was seeking were administered by the Speaker of the House of Commons, not by the Press Gallery. As regards the issue of denial of membership, the Judge found that the Press Gallery had not failed to accord the author natural justice. The Judge noted that the author had been given temporary membership on a number of occasions and that his failure to obtain active membership was attributable to his refusal to answer questions posed to him by the Board of Directors of the Press Gallery for the purposes of determining whether or not he fulfilled the requirements for active membership.

7.4       The State party reiterates that the author's failure to gain access to the Parliamentary Press Gallery is directly attributable to his failure to cooperate with the Press Gallery in the pursuit of his application for active membership. According to the State party, he has thus failed to exhaust the simplest and most direct domestic remedy available to him. The State party adds that the Speaker of the House of Commons has "good reason to expect individuals to follow the normal channels for obtaining access to the Parliamentary Press Gallery premises located on the Parliamentary precincts. In order to make access to Parliamentary precincts meaningful, the Speaker needs to ensure that access to any location on the precincts is controlled. For this purpose, in the particular case of the Parliamentary Press Gallery premises located in the Parliamentary precincts, the Speaker has chosen, as a matter of practice, to condition such access on membership of the Canadian Press Gallery." The State party submits that the Speaker's practice is reasonable and appropriate and consistent with the freedom of expression and of the press.

Author's further comments

8.1       In his comments on the State party's further submission, the author complains about the delays the State party is causing and submits that his complaint is well-founded and has merit, particularly in the light of the State party's demonstrated practice and intention to prolong a domestic resolution.

8.2       The author reiterates that the Government of Canada prevents him to seek and receive information and observe proceedings on behalf of his readers, and prohibits his access to facilities and services provided for the media. He emphasizes that favoured journalists benefit from special privileges, among others free phones, services of a Government staff of nine, access to Press Conferences, office space, access to press releases and to information about the itineraries of public officials, parking, access to the Library of Parliament.

8.3       The author submits that the Court has ruled that he cannot obtain the privileges he wants from the Press Gallery, since they fall under the control of the Speaker of the House of Commons. At the same time, the Speaker refuses to intervene in what he sees as internal matters of the Press Gallery. The author states that he tried to comply with the Press Gallery's requirements, but that there is no appeal available against their decisions. He contests that the temporary pass does not restrict the freedom of expression, as it denied full access to all facilities and services provided for the press.

8.4       The author acknowledges that the Press Gallery may have some merit in screening applicants who request access to the facilities and services provided for the media, but argues that there should be a recourse available of any decision that is unfair or in violation of fundamental human rights. He states that Canada clearly is unwilling to provide such a recourse, as shown by the refusals of the Speaker of the House to address the matter as well as by its reply to the Committee, and argues that all available and effective domestic remedies have thus been exhausted.

Committee's decision on admissibility

9.1       At its 60th session, the Committee considered the admissibility of the communication.

9.2       The Committee noted that the State party had argued that the communication was inadmissible for failure to exhaust domestic remedies. The Committee carefully examined the remedies listed by the State party and came to the conclusion that no effective remedies were available to the author. In this context, the Committee noted that it appeared from the Court decisions in the case that the access the author was seeking, fell within the competence of the Speaker of the House of Commons, and that decisions of the Speaker in this matter were not reviewable by the Courts. The State party's argument that the author could find a solution by cooperating in the determination of his qualifications for membership in the Canadian Parliamentary Press Gallery did not address the issue raised by the author's communication, whether or not the limitation of access to the press facilities in Parliament to members of the Press Gallery violated his right under article 19 of the Covenant.

9.3       The State party had further argued that the author had failed to present a prima facie case and that the communication was thus inadmissible for non-substantiation of a violation. The Committee noted that it appeared from the information before it that the author had been denied access to the press facilities of Parliament, because he was not a member of the Canadian Parliamentary Press Gallery. The Committee further noted that without such access, the author was not allowed to take notes during debates in Parliament. The Committee found that this might raise an issue under article 19, paragraph 2, of the Covenant, which should be considered on its merits.

9.4       The Committee further considered that the question whether the State party can require membership in a private organization as a condition for the enjoyment of the freedom to seek and receive information, should be examined on its merits, as it might raise issues not only under article 19, but also under articles 22 and 26 of the Covenant.

10.       Accordingly, on 10 July 1997, the Human Rights Committee decided that the communication was admissible.

State party's submission on the merits

11.1 By submission of 14 July 1998, the State party provides a response on the merits of the communication. It reiterates its earlier observations and explains that the Speaker of the House of Commons, by virtue of Parliamentary privilege, has control of the accommodation and services in those parts of the Parliamentary precincts that are occupied by or on behalf of the House of Commons. One of the Speaker's duties in this regard is controlling access to these areas. The State party emphasizes that the absolute authority of Parliament over its own proceedings is a crucial and fundamental principle of Canada's general constitutional framework.

11.2 With regard to the relationship between the Speaker and the Press Gallery, the State party explains that this relationship is not formal, official or legal. While the Speaker has ultimate authority over the physical access to the media facilities in Parliament, he is not involved in the general operations of these facilities which are administered and run entirely by the Press Gallery.

11.3 Press passes granting access to the media facilities of Parliament are issued to Gallery members only. The State party reiterates that the determination of membership in the Press Gallery is an internal matter and that the Speaker has always taken a position of strict non-interference. It submits that as a member of the public, the author has access to the Parliament buildings open to the public and that he can attend the public hearings of the House of Commons.

11.4 In this connection, the State party reiterates that the proceedings of the House of Commons are broadcasted on television and that any journalist can report effectively on the proceedings in the House of Commons without using the media facilities of Parliament. The State party adds that the transcripts of the House debates can be found on Internet the following day. Speeches and press releases of the Prime Minister are deposited in a lobby open to the public, and are also posted on Internet. Government reports and press releases are likewise posted on Internet.

11.5 The State party argues that the author has not been deprived of his freedom to receive and impart information. Although as a member of the public, he may not take notes while sitting in the Public Gallery of the House of Commons, he may observe the proceedings in the House and report on them. The State party explains that "Note-taking has traditionally been prohibited in the public galleries of the House of Commons as a matter of order and decorum and for security reasons (e.g. the throwing of objects at the members of Parliament from the gallery above)". Moreover, the information he seeks is available through live broadcasting and Internet.

11.6 Alternatively, the State party argues that any restriction on the author's ability to receive and impart information that may result from the prohibition on note-taking in the public gallery in the House of Commons is minimal and is justified to achieve a balance between the right to freedom of expression and the need to ensure both the effective and dignified operation of Parliament and the safety and security of its members. According to the State party, states should be accorded a broad flexibility in determining issues of effective governance and security since they are in the best position to assess the risks and needs.

11.7 The State party also denies that a violation of article 26 has occurred in the author's case. The State party acknowledges that a difference in treatment exists between journalists who are members of the Press Gallery and those who do not satisfy the criteria for membership, but submits that this has not lead to any significant disadvantage for the author. The State party also refers to the Committee's jurisprudence that not every differentiation can be deemed to be discriminatory and submits that the distinction made is compatible with the provisions of the Covenant and based on objective criteria. In this context, the State party emphasizes that access to press facilities in Parliament must necessarily be limited since the facilities can only accommodate a limited number of people. It is reasonable to limit such access to journalists who report regularly on the proceedings in Parliament. The Speaker is aware of the criteria for membership in the Press Gallery and relies on these criteria as an appropriate standard for determining who should or should not have access to the media facilities of Parliament. It is submitted that these criteria, which the Speaker has by implication adopted and endorsed, are specific, fair and reasonable, and cannot be deemed arbitrary or unreasonable.

11.8 With regard to article 22 of the Covenant, the State party observes that the author is not being forced by the Government to join any association. He is free not to associate with the Press Gallery, nor is his ability to practice the profession of journalism conditioned in any way upon his membership of the Press Gallery.

The author's comments on the State party's submission

12.1 In his comments, dated 25 September 1998, the author refers to his earlier submissions. He emphasizes that he is without remedy because of the refusal of the Speaker to intervene on his behalf and to grant him access to the press facilities or even hear him. The author emphasizes that no powers have been transferred from the Speaker to the Press Gallery, nor has the Speaker the authority to delegate his responsibilities to an individual group without accountability to the Members of Parliament. According to the author, the Parliamentary privileges are of no force or effect when they infringe fundamental rights such as those contained in the Covenant. The author argues that the State party is allowing a private organization to restrict access to news and information.

12.2 The author also gives examples of how Speakers have intervened in the past and given access to the media facilities in Parliament to individual journalists who had been denied membership by the Press Gallery. He rejects the State party's argument that the Speaker would be interfering with the freedom of the press if he were to intervene, on the contrary, he argues that the Speaker has a duty to intervene in order to protect the freedom of expression.

12.3 The author reiterates that as a journalist he requires equal access to the media facilities of Parliament. He states that, although it can be seen as reasonable for the Speaker to have the accreditation of journalists handled by the staff assigned to the Press Gallery, things got out of control and the Press Gallery began using favouritism on the one hand and coercion and blackmail on the other, and as a result the author was denied access and has no recourse. He emphasizes that he meets all the requirements for accreditation. In any event, he argues that the Gallery's by-laws can never affect his fundamental rights under article 19, paragraph 2, to have access to information. He adds that the Gallery's by-laws are arbitrary, inconsistent, tyrannical and in violation not only of the Covenant but also of the State party's own constitution. The author submits that if a group of journalists wishes to form their own association, they should feel free to do so. This private, voluntary organization should in no way be given authority or supervision over any publicly-financed activities and services as it has today, especially since no possibility of appeal from its decisions is provided. He rejects membership in this association as a prerequisite to enjoying his fundamental right to freedom of expression and submits that he should not be forced to belong to the Press Gallery in order to receive information that is made available by the House of Commons.

12.4 With regard to the State party's argument that live coverage of all proceedings in the House of Commons is available, the author submits that the Cable Public Affairs Channel which broadcasts the House of Commons proceedings, is a news service in competition with the author. He states that it is of very little use as a journalist, since one has to watch whatever they decide to broadcast. The author moreover contests that live coverage of all proceedings in the House of Commons is available, since very often debates are broadcasted as replays, and most Committee meetings are not televized. The author also argues that there is much more to reporting on the activities of Parliament than observe the sessions that take place in the House of Commons. In addition, being recognized in the eyes of the Government community as part of the accepted media is essential to the process of networking within that community. The author therefore maintains that the restrictions by not having access to the media facilities in Parliament seriously impede if not render impossible his ability to seek and obtain information about the activities of the Parliament and Government of Canada.

12.5 The author rejects the State party's argument that his being allowed to do his work along with the other 300 accredited journalists would encroach on the effective and dignified operation of Parliament and the safety and security of its members. With regard to article 26 of the Covenant, the author denies that the difference in treatment between him and journalists members of the Press Gallery is reasonable and reiterates that he has been arbitrarily denied equal access to media facilities. Although he accepts that the State party may limit access to press facilities in Parliament, he submits that such limits must not be unduly restraining, must be administered fairly, must not infringe on any person's right to freedom of expression and the right to seek and receive information, and must be subject to review. According to the author, the absence of an avenue of appeal of a decision by the Press Gallery constitutes a violation of equal protection of the law. The author does not accept that limited space means that he cannot be allowed to use the press facilities, since other new journalists have been admitted and since there would be other possibilities of solving this, such as limiting the number of accredited journalists who work for the same news organization.

12.6 Finally, the author submits that the exclusion from access to essential services and facilities provided by the House of Commons for the press of those journalists who are not a member of the Canadian Press Gallery constitutes a violation of the right to freedom of association, since no one should be forced to join an association in order to enjoy a fundamental right such as freedom to obtain information.

Committee's examination of the merits

13.1 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.

13.2 With regard to the author's claims under articles 22 and 26 of the Covenant, the Committee has reviewed, under article 93 (4) of its Rules of Procedure, its decision of admissibility taken at its 60th session and considers that the author had not substantiated, for purposes of admissibility, his claim under the said articles. Nor has he further substantiated it, for the same purposes, with his further submissions. In these circumstances, the Committee concludes that the author's communication is inadmissible under article 2 of the Optional Protocol, as far as it relates to articles 22 and 26 of the Covenant. In this regard, the admissibility decision is therefore repealed.

13.3 The issue before the Committee is thus whether the restriction of the author's access to the press facilities in Parliament amounts to a violation of his right under article 19 of the Covenant, to seek, receive and impart information.

13.4 In this connection, the Committee also refers to the right to take part in the conduct of public affairs, as laid down in article 25 of the Covenant, and in particular to General Comment No. 25 (57) which reads in part: "In order to ensure the full enjoyment of rights protected by article 25, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion." Read together with article 19, this implies that citizens, in particular through the media, should have wide access to information and the opportunity to disseminate information and opinions about the activities of elected bodies and their members. The Committee recognizes, however, that such access should not interfere with or obstruct the carrying out of the functions of elected bodies, and that a State party is thus entitled to limit access. However, any restrictions imposed by the State party must be compatible with the provisions of the Covenant.

13.5 In the present case, the State party has restricted the right to enjoy the publicly funded media facilities of Parliament, including the right to take notes when observing meetings of Parliament, to those media representatives who are members of a private organisation, the Canadian Press Gallery. The author has been denied active (i.e. full) membership of the Press Gallery. On occasion he has held temporary membership which has given him access to some but not all facilities of the organisation. When he does not hold at least temporary membership he does not have access to the media facilities nor can he take notes of Parliamentary proceedings. The Committee notes that the State party has claimed that the author does not suffer any significant disadvantage because of technological advances which make information about Parliamentary proceedings readily available to the public. The State party argues that he can report on proceedings by relying on broadcasting services, or by observing the proceedings. In view of the importance of access to information about the democratic process, however, the Committee does not accept the State party's argument and is of the opinion that the author's exclusion constitutes a restriction of his right guaranteed under paragraph 2 of article 19 to have access to information. The question is whether or not this restriction is justified under paragraph 3 of article 19. The restriction is, arguably, imposed by law, in that the exclusion of persons from the precinct of Parliament or any part thereof, under the authority of the Speaker, follows from the law of parliamentary privilege.

13.6 The State party argues that the restrictions are justified to achieve a balance between the right to freedom of expression and the need to ensure both the effective and dignified operation of Parliament and the safety and security of its members, and that the State party is in the best position to assess the risks and needs involved. As indicated above, the Committee agrees that the protection of Parliamentary procedure can be seen as a legitimate goal of public order and an accreditation system can thus be a justified means of achieving this goal. However, since the accreditation system operates as a restriction of article 19 rights, its operation and application must be shown as necessary and proportionate to the goal in question and not arbitrary. The Committee does not accept that this is a matter exclusively for the State to determine. The relevant criteria for the accreditation scheme should be specific, fair and reasonable, and their application should be transparent. In the instant case, the State party has allowed a private organization to control access to the Parliamentary press facilities, without intervention. The scheme does not ensure that there will be no arbitrary exclusion from access to the Parliamentary media facilities. In the circumstances, the Committee is of the opinion that the accreditation system has not been shown to be a necessary and proportionate restriction of rights within the meaning of article 19, paragraph 3, of the Covenant, in order to ensure the effective operation of Parliament and the safety of its members. The denial of access to the author to the press facilities of Parliament for not being a member of the Canadian Press Gallery Association constitutes therefore a violation of article 19 (2) of the Covenant.

13.7 In this connection, the Committee notes that there is no possibility of recourse, either to the Courts or to Parliament, to determine the legality of the exclusion or its necessity for the purposes spelled out in article 19 of the Covenant. The Committee recalls that under article 2, paragraph 3 of the Covenant, States parties have undertaken to ensure that any person whose rights are violated shall have an effective remedy, and that any person claiming such a remedy shall have his right thereto determined by competent authorities. Accordingly, whenever a right recognized by the Covenant is affected by the action of a State agent there must be a procedure established by the State allowing the person whose right has been affected to claim before a competent body that there has been a violation of his rights.

14. 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 19, paragraph 2, of the Covenant.

15. Under article 2, paragraph 3(a), of the Covenant, the State party is under the obligation to provide Mr. Gauthier with an effective remedy including an independent review of his application to have access to the press facilities in Parliament. The State party is under an obligation to take measures to prevent similar violations in the future.

16. 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 ninety days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

APPENDIX

               Individual opinion by Lord Colville, Elizabeth Evatt,

               Cecilia Medina Quiroga and Hipólito Solari Yrigoyen

(partly dissenting)

            In regard to paragraph 13.2 of the Committee's Views, our opinion is that the claims of the author under articles 22 and 26 of the Covenant have been sufficiently substantiated and that there is no basis to revise the decision on admissibility.

Article 26 of the Covenant stipulates that all persons are equal before the law. Equality implies that the application of laws and regulations as well as administrative decisions by Government officials should not be arbitrary but should be based on clear coherent grounds, ensuring equality of treatment. To deny the author, who is a journalist and seeks to report on parliamentary proceedings, access to the Parliamentary press facilities without specifically identifying the reasons, was arbitrary. Furthermore, there was no procedure for review. In the circumstances, we are of the opinion that the principle of equality before the law protected by article 26 of the Covenant was violated in the author's case.

In regard to article 22, the author's claim is that requiring membership in the Press Gallery Association as a condition of access to the Parliamentary press facilities violated his rights under article 22. The right to freedom of association implies that in general no one may be forced by the State to join an association. When membership of an association is a requirement to engage in a particular profession or calling, or when sanctions exist on the failure to be a member of an association, the State party should be called on to show that compulsory membership is necessary in a democratic society in pursuit of an interest authorised by the Covenant. In this matter, the Committee's deliberations in paragraph 13.6 of the Views make it clear that the State party has failed to show that the requirement to be a member of a particular organisation is a necessary restriction under paragraph 2 of article 22 in order to limit access to the press gallery in Parliament for the purposes mentioned. The restrictions imposed on the author are therefore in violation of article 22 of the Covenant.

(Signed) Lord Colville                                                                          (Signed) Elizabeth Evatt

(Signed) Cecilia Medina Quiroga                                                         (Signed) Hipólito Solari Yrigoyen

[Done in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

Individual opinion by Prafullachandra N. Bhagwati

(partly dissenting)

            In regard to paragraph 13.2 of the Committee's Views, my opinion is that the claims of the author under articles 22 and 26 of the Covenant have been sufficiently substantiated and that there is no basis to revise the decision on admissibility.

            Article 26 of the Covenant stipulates that all persons are equal before the law. Equality implies that the application of laws and regulations as well as administrative decisions by Government officials should not be arbitrary but should be based on clear coherent grounds, ensuring equality of treatment. To deny the author, who is a journalist and seeks to report on parliamentary proceedings, access to the Parliamentary press facilities was arbitrary. The only reason why the author was denied access was that was not a member of the Press Gallery Association. What article 26 strikes at is arbitrariness in treatment. Here the basis of differentiation between a journalist like the author who was denied access, and the journalists who were given access was membership of a private organization, viz the Press Gallery Association which basis did not bear any rational relation or relevance to the object of accreditation. The requirement of membership of the Press Gallery Association was therefore clearly arbitrary. Furthermore, there was no procedure for review. In the circumstances, I am of the opinion that the principle of equality before the law protected by article 26 of the Covenant was violated in the author's case.

            In regard to article 22, the author's claim is that requiring membership in the Press Gallery Association as a condition of access to the Parliamentary press facilities violated his rights under article 22 read with article 19. The right to freedom of association implies that in general no one may be forced by the State to join an association. When membership of an association is a requirement to engage in a particular profession or calling, or when sanctions exist on the failure to be a member of an association, the State party should be called on to show that compulsory membership is necessary in a democratic society in pursuit of an interest authorised by the Covenant. In this matter, the Committee's deliberations in paragraph 13.6 of the Views make it clear that the State party has failed to show that the requirement to be a member of a particular organization was a necessary restriction under paragraph 2 of article 22 in order to limit access to the press gallery in Parliament for the purposes mentioned. The restrictions imposed on the author are therefore in violation of article 22 of the Covenant.

(Signed) Prafullachandra N. Bhagwati

[Done in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

Individual opinion by David Kretzmer

(partly dissenting)

            I join the opinion of my colleagues Mr. Solari Yrigoyen and Ms. Elizabeth Evatt, in the view that there was a violation of article 22 in the present case. However, I do not share their view that a violation of article 26 has also been substantiated. In my mind, it is not sufficient, in order to substantiate a violation of article 26, merely to state that no reasons were given for a decision. Furthermore, it seems to me that the author's claim under article 26 is in essence a restatement of his claim under article 19. It amounts to the argument that while others were allowed access to the Press Gallery, the author was denied access. Accepting that this constitutes a violation of article 26 would seem to imply that in almost every case in which one individual's rights under other articles of the Covenant are violated, there will also be a violation of article 26. I therefore join the Committee in the view that the author's claim of a violation of article 26 has not been substantiated. The Committee's decision on admissibility should be revised and the claim under article 26 be held inadmissible.

(Signed) David Kretzmer

[Done in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

Individual opinion by Rajsoomer Lallah

(partly dissenting)

            The Committee is of the view that the claims of the author in relation to articles 22 and 26 of the Covenant have not been sufficiently substantiated for purposes of admissibility and has revised its previous favourable decision on admissibility.

            It seems to me that articles 22 and 26 are, in the particular circumstances of this communication, particularly relevant in deciding whether there has been a violation of the author's right under article 19 (2) of the Covenant to seek, receive and impart information, in relation to Parliamentary proceedings which are matters of interest to the general public. It is to be noted that access to parliamentary press facilities in this regard is given exclusively to members of an association which has so to say a monopoly over access to those facilities.

            Freedom of association under article 22 inherently includes freedom not to associate. To impose membership of an association on the author as a condition precedent to access to Parliamentary press facilities in effect means that the author is compelled to seek membership of the association, which may or may not accept the author as a member, unless he decides to forego the full enjoyment of his rights under article 19 (2) of the Covenant.

            The rights of the author, in respect of equality of treatment guaranteed under article 26, have been violated in the sense that the State party has, in effect, delegated its control over the provision of equal press facilities within public premises to a private association which may, for reasons of its own and not open to judicial control, admit or not admit a journalist like the author as a member. The delegation of this control by the State party exclusively to a private association generates inequality of treatment as between members of the association and other journalists who are not members.

            I conclude, therefore, that the author has been a victim of a violation of his rights under article 19 (2) by the State party's recourse to measures, designed to provide access to journalists reporting on Parliamentary proceedings, which are themselves violative of articles 22 and 26 of the Covenant and which cannot be justified by the restrictions permissible under article 19 (3) of the Covenant.

(Signed) Rajsoomer Lallah

[Done in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

        M. Communication No. 644/1995, Ajaz and Jamil v. Republic of Korea

            (Views adopted on 13 July 1999, sixty-sixth session)

Submitted by:                                     Mohammed Ajaz and Amir Jamil

Alleged victim:                                   The authors

State party:                                         Republic of Korea

Date of communication:                     1 June 1995

Date of decision on

admissibility:                                      19 March 1997

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

            Meeting on 13 July 1999,

            Having concluded its consideration of communication No.644/1995             submitted to the Human Rights Committee by Mohammed Ajaz and Amir Jamil, 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 Mohammad Ajaz and Amir Jamil, both Pakistani citizens at the time of submission of the communication incarcerated in the Republic of Korea. The authors claim that they are victims of violations of their human rights by the Republic of Korea.

The facts as presented by the authors

2.1       The authors state that they were convicted of murdering one Mokhter Ahmed (Vicky) and one Ahsan Zuber (Nana), two fellow Pakistani citizens, in Songnam City on 24 March 1992. The authors were tried and sentenced to death on 29 September 1992, after having pleaded not guilty to the charges.

2.2       The authors state that on 23 March 1992 they were in Songnam's mountain area south-east of Seoul, together with the deceased and three other men. According to the authors one of them, a certain Zubi accused the deceased of murdering his brother, who had been stabbed to death earlier that night in the town of Itaewon. The authors allege that Zubi then stabbed both deceased. The authors claim that they begged Zubi to desist, but that Zubi threatened that if the authors spoke of the evening's incidents, he would "include all of them in the murders".

2.3       The authors state that, on 26 March 1992, they were questioned by the Republic of Korea police as to the whereabouts of Zubi. The authors claim that they told the police that they knew nothing about Zubi's whereabouts. The authors further claim that the police and the investigating prosecutor then brought in one Zahid, the authors' roommate, and that Zahid was forced to sign a statement written by the police which alleged that the authors had stolen approximately $200 from Zahid on 5 March 1992. The authors submit that the police elicited the statement from Zahid by severely beating him. The authors were subsequently charged with theft.

2.4       The authors state that, on 28 March 1992, the police discovered the bodies of the deceased. They further claim that, some time in April 1992, the police found and questioned Zubi. The authors submit that Zubi had been beaten by the police into signing a statement in which he confessed to the murders, and in which he implicated the authors. The authors state that "all six Pakistani men" who were present at the scene of the crime implicated Zubi. The authors claim that the police, in order to obtain inculpatory statements from the authors, proceeded to beat them and to apply electro-shock to their genitals. They state, however, that they neither made nor signed any confessions.

The complaint

3.1       The authors state that, during the trial, both Zubi and Zahid testified that the police forced them to sign statements which implicated the authors. The authors also claim that no evidence was brought against them at trial. They state that the murder weapons were never found, that evidence of a "racketeering and criminal ring" in which they were allegedly involved was never substantiated and that after a witness testified to being present while the authors were being beaten by the police, the court was cleared of all defendants, following which, upon their return, the witness retracted his statement on record. They also complain about errors in the translation of their statements.

3.2       The authors state that they were sentenced to death, while Zubi received a sentence of 15 years of imprisonment, and others present at the scene of the crime received a sentence of five years. They submit that the Supreme Court and the High Court allowed the sentences to stand. The authors acknowledge that they did not fully cooperate with the authorities, and submit that they were frightened of their co-accused Zubi, who threatened to harm their families if they told the truth.

3.3       Although the authors do not claim specific violations under the Covenant, the communication appears to raise issues under articles 6, 7, 9, 10 and 14.

State party's comments on admissibility and authors' comments thereon

4.1       By submission of 2 October 1995, the State party states that, on 29 September 1992, the Seoul Criminal District Court convicted the authors for murder, abandonment of corpse, robbery and attempted robbery and sentenced them to death. On 28 January 1993, the Seoul High Court denied the authors' appeal, and on 4 May 1993, the Supreme Court dismissed a further appeal. With this, the State party acknowledges that all available domestic remedies have been exhausted.

4.2       The State party submits that the authors have been convicted of the murders on the basis of testimonies and confessions of three accomplices to the crime. The authors themselves did not make a confession, and the State party argues that their allegations of torture are thus incredible. The State party contests the authors' claim that Imran Shazad (Zubi) confessed to the murders, and states that he only confessed to being an accomplice.

4.3       The State party submits that the authors have been sentenced to death because of the seriousness of their crime, and that their co-accused have been sentenced less severely because their crime was less serious. The State party adds that, in the absence of additional evidence, it cannot reinvestigate the case. However, if the authors can present sufficient evidence that a miscarriage of justice has occurred, they are entitled to a retrial.

5.1       In their response to the State party's submission, the authors reiterate that all witnesses and accused were tortured by the police and gave their testimony under pressure.

5.2       The authors further contend that the police beat them in their faces, and with a baseball bat over their bodies, in order to make them confess. During the interrogation, the interpreter Yooa Suk Suh was present and witnessed the beatings. Later they were subjected to electric shocks. They reiterate that during the trial their co-accused denied that the authors were the murderers. They further note that the State party mentions the names of the persons on whose evidence they were allegedly convicted, but claim that those mentioned were only interpreters who all testified that they were beaten. They request that the State party furnish copies of the trial transcript.

5.3       The authors further state that the Republic of Korea authorities do not allow free correspondence with outside organizations such as the Human Rights Committee.

6.1       By a submission of 29 April 1996, the State party reiterates that, although the authors denied their involvement in the crime from the beginning and throughout the trial, the testimonies of Yooun Suk Suh, Moahammed Tirke and Sang Jin Park, accomplices to the crimes, demonstrate that the authors murdered their victims in revenge against a rival criminal organization. The State party reiterates that their convictions were based on concrete evidence. The State party further explains that the authors were represented by legal counsel throughout the trial and the appeals.

6.2       As regards the right to correspondence, the State party submits that the Prisoners Communications Rules are in accordance with the United Nations Standard Minimum Rules for the Treatment of Prisoners, and allow correspondence with family and friends. Further, article 18 of the Penal Administration Act permits occasional correspondence with those other than family and friends. The latter right can be restricted only in exceptional cases for the sake of correctional education.

7.         In their response to the State party's submission, the authors reiterate that the persons mentioned by the State party as having testified against them were interpreters during their time in detention. They conclude that this shows that the accusations against them were fabricated, and request the Committee to demand from the State party copies of the statements used in the trial. In this context, the authors claim that the Head of the Prosecutor's Office was found guilty of corruption six months after their trial.

Committee's decision on admissibility

8.1       At its 59th session, the Human Rights Committee considered the admissibility of the communication.

8.2       The Committee ascertained, as required under article 5, paragraph 2 (a), of the Optional Protocol, that the same matter was not being examined under another procedure of international investigation or settlement.

8.3       The Committee noted that the State party had acknowledged that the authors had exhausted all available domestic remedies, and that it had not raised any other objection to the admissibility of the communication.

8.4       The Committee considered that the allegations raised in the communication, including those of torture, confessions and testimonies given under duress, the use of these testimonies against the authors and the reliance of the Republic of Korea judicial authorities on these testimonies despite later withdrawal of the accusations contained therein, need to be examined on their merits.

9.         Accordingly, on 19 March 1997, the Human Rights Committee decided that the communication was admissible and requested the State party to furnish original copies and translations into English of the trial transcripts and judgements in the case against the authors, as well as the statements on the basis of which the authors were convicted.

State party's observations and the authors' comments

10.1 By submission of 7 November 1997, the State party recalls the facts of the case against the authors as established by the courts. With regard to the authors' claims that they were forced to provide false testimony under mistreatment, the State party submits that the investigations documents show that the authors' testimonies were recorded word for word and that they had full opportunity to present an alibi. The State party emphasizes that a defence counsel was provided at all three stages of the proceedings. In relation to the translation, claimed to be inaccurate by the authors, the State party notes that this point was argued at length by the authors' counsel. A reinvestigation conducted in April 1997 proved the authors' claims to be inaccurate.

10.2 In a spirit of cooperation with the Committee, the State party submits that it reviewed the authors' case, despite it having been fairly and thoroughly deliberated by the courts. During the reinvestigation, conducted by a public prosecutor from the Ministry of Justice, the authors and the accomplices verified that their testimonies had been correctly recorded in the initial investigation documents. According to the State party, this nullifies the claim that acts of torture were employed to obtain confessions from the authors. When the authors reviewed the content of the translations, they acknowledged that the translations were done properly.

10.3 In respect to the authors' claim of having been tortured, the State party notes that this allegation was brought before the court during the trial, but that the authors and their legal defence failed to present any tangible evidence, and their claims were dismissed. In this connection, the State party recalls that acts of torture are prohibited by law; if torture nevertheless occurs, the perpetrator is severely punished and any confession obtained through acts of torture loses its validity.

10.4 The State party further submits that the authors tried to entice and threaten the accomplices to offer favourable testimonies and manufacture evidence. According to the State party this is shown by correspondence and anonymous blackmail messages. It encloses English translations of some letters.

10.5 With regard to the Committee's request for the trial transcripts and the judgements in the case, the State party maintains as a rule that it is not allowed to peruse, photocopy and transmit the records of closed cases in order to protect the safety of victims and witnesses and the repute of defendants. It moreover argues that translating about a thousand pages of investigation documents is physically impossible at this time.

11.1 By letter of 30 June 1997, Mr. Hyoung Tae Kim, Chairman of the Korean Catholic Human Rights Committee presents himself as the authors' legal representative and encloses a power of attorney to this effect.

11.2 By submission of 23 March 1998, the authors comment on the State party's submission. They reiterate that their conviction is not based on facts but on speculation. They reiterate that they were taken into custody on false charges of robbery, that they were ill treated and that the interpreters misrepresented the facts.

11.3 With regard to the State party's reinvestigation, the authors state that a prosecutor came to visit them in prison in late April 1997, and that he asked them questions which were translated by a prison guard. They state that no proper reinvestigation has been carried out. They deny that they verified that their statement had been properly recorded in the investigation documents and state that they have never been allowed to verify the contents of the translations of their statements.

11.4 The authors reject the State party's claims that they tried to influence the witnesses and co-accused in order to have them testify in their favour.

11.5 The authors state that they cannot show how the police tortured them, but they refer to the statements made by the accused at trial that they had been tortured. Mr. Ajaz states that he suffered permanent damage to his left ear, and Mr. Amir nasal damage and the fracture of his right hand finger. They state that they have no access to their medical reports.

12.1 By further submission of 3 July 1998, the State party provides additional observations. With regard to the authors' claim that they were found guilty because of errors in the translation and interpretation, the State party submits that the testimony of the translators shows that the authors' statements have been correctly translated. In this context, the State party notes that one of the interpreters was a Pakistani national.

12.2 With regard to the authors' allegations of torture, the State party refers to a medical report that at the time of his arrest, Mr. Ajaz was suffering from chronic tympanitis of the left ear. In court, a Korean interpreter testified that he never saw any use of torture during the investigative process. According to the State party, during the reinvestigation in April/May 1997, the authors never complained to the prosecutor about use of torture against them.

12.3 With regard to the authors' suggestion that they were discriminated against because they were foreigners, the State party notes that all criminal proceedings apply equally to foreigners and citizens alike and that the Constitution assures everyone within the State's jurisdiction effective protection and remedies against any acts of racial discrimination.

12.4 The State party notes that some of the discrepancies between the State party's account of the facts and that of the authors are due to problems of translation. The State party maintains that the authors were found guilty by the courts on the basis of the consistent and coinciding confessions of the accomplices. According to the State party, the authors during the court hearings denied being present at the scene of the crime, and acknowledged for the first time their presence in their interview with the prosecutor on 1 May 1997. The prosecutor also spoke to one of the co-accused in prison, who testified that he had lied in court when he said that he didn't know anything about the crime, and that he had taken part in it together with the authors.

12.5 The State party maintains that the authors received a fair and impartial trial, and that they were found guilty at three levels, by the District Court, the High Court and the Supreme Court. It adds that the authors are entitled to a retrial if they present sufficient evidence.

12.6 The State party provides copies of English translations of the Courts' judgements. From the judgements, it appears that the District Court considered the voluntariness of the statements made by the defendants, but that in the light of the testimonies it found no sustainable reason to doubt the voluntariness of the statements. On appeal, the High Court examined the authors' grounds of appeal that the statements made by the defendants were not trustworthy because of mistakes in the translation and interpretation, and because of threats and violence used against the defendants. The High Court found however that the interpreters were capable of interpreting in Pakistani and Korean, and did so correctly. It also noted that the police officer in charge of the investigation had made detailed and elaborate reports on the investigation process and that no evidence was found to prove that he had treated the accused harshly in any way or that he fabricated testimony. The Court concluded that the defendants had not been forced to testify, nor tortured. The Supreme Court rejected the authors' appeal on the basis that no misinterpretation of facts in the use of evidence occurred which would cause a violation of the law.

13.1 By letter of 23 July 1998, the authors' representative informs the Committee that the authors have been granted a pardon by the President. This information is confirmed by a note from the State party, dated 2 September 1998, that the authors' death sentence has been commuted to life imprisonment, in compliance with its national amnesty programme.

13.2 By letter of 26 February 1999, the authors' representative informs the Committee that the authors have been released from prison and have returned to Pakistan on 25 February 1999. This information has been confirmed by the State party in a note dated 9 March 1999.

Issues and proceedings before the Committee

14.1 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.

14.2 The Committee notes that the authors' claims that there was not enough evidence to convict them, that they had been tortured in order to force them to confess and that mistakes occurred in the translations of their statements were examined by both the court of first instance and the court of appeal, which rejected their claims. The Committee refers to its jurisprudence that it is not for the Committee, but for the courts of States parties, to evaluate the facts and evidence in a specific case, unless it can be ascertained that the evaluation was clearly arbitrary or amounted to a denial of justice. The Committee regrets that the State party did not provide a copy of the trial transcript which has prevented the Committee from examining fully the conduct of the trial. Nevertheless, the Committee has considered the judgements of the District Court and the High Court. Having regard to the content of these judgments and in particular their evaluation of the authors' claims subsequently made to the Committee, the Committee does not find that those evaluations were arbitrary or amounted to a denial of justice or that the authors have raised before the Committee any issues beyond those so evaluated.

15. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it do not disclose a violation of any of the articles of the International Covenant on Civil and Political Rights.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

         N. Communication No. 647/1995, Pennant v. Jamaica

             (Views adopted on 20 October 1998, sixty-fourth session)*

Submitted by:                                                          Wilfred Pennant

(represented by Mr. S. Lehrfreund from the London Law firm of Simons Muirhead and Burton)

Victim:                                                                    The author 

State party:                                       Jamaica

Date of communication:                   8 November 1994 (initial submission)

Date of decision on

admissibility:                                   20 October 1998

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

            Meeting on 20 October 1998,

            Having concluded its consideration of communication No. 647/1995 submitted to the Human Rights Committee by Mr. Wilfred Pennant, 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 Wilfred Pennant, a Jamaican national, serving a life sentence at St. Catherine District Prison, Jamaica. He claims to be a victim of violations by Jamaica of articles 7; 9 paragraphs 2, 3 and 4; 10 paragraph 1; and 14, paragraphs 1 and 3 (a), of the International Covenant on Civil and Political Rights. He is represented by Mr. Saul Lehrfreund of the London Law firm of Simons Muirhead and Burton.

The facts as submitted by the author

2.1       The author was convicted of the murder, on 22 February 1983, of one Ernest Stephens, a police officer. He was sentenced to death on 4 October 1984 by the St Catherine District Court, Kingston, Jamaica. His appeal was dismissed by the Court of Appeal of Jamaica on 15 May 1986. On 15 December 1987, the author's petition

________________________

            * The following members of the Committee participated in the examination of the present communication: Mr. Prafullachandra N. Bhagwati, Mr. Thomas Buergenthal, Lord Colville, Mr. Omran El Shafei, Ms. Elizabeth Evatt, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Martin Scheinin, Mr. Roman Wieruszewski, Mr. Maxwell Yalden and Mr. Abdallah Zakhia.

for special leave to appeal to the Judicial Committee of the Privy Council was dismissed. On 14 December 1989 the author's sentence was commuted to life imprisonment.

2.2       The author states that, on 1 May 1983, he went to Chapletown Police Station to report the incident. He was transferred to Spanish Town Police Station, on an unspecified date, where he was charged for murder on 4 May 1983. He was not brought before a judicial officer until June 1983, approximately one month after his arrest.

2.3       The prosecution's case was based on evidence given by an eyewitness and a deposition made by a second witness who died before the trial took place. During the trial, Vincent Johnson, an assistant bailiff, testified that on 23 February 1983, he had accompanied officer Stephens and the author's landlord, with a warrant of commitment for non-payment of rent. When they came upon the author in the street, the author claimed to have paid through the landlord's lawyer. Mr. Johnson further testified that when officer Stephens requested that the author accompany him to verify with the lawyer that payment had been made, the author refused. The witness testified that Stephens held the author by the waist, whereupon the author took an ice pick from his waist and stabbed the policeman, who fired six shots at the author from a distance of 3 feet but did not hit him. The author then ran away. All these events are said to have taken place outside, on the street.

2.4       A deposition was admitted into evidence during the trial in which the landlord (who had died by the time the trial was held) and witness to the murder corroborated that the events had taken place outside, but claimed that he had only seen one stab, and had not seen where the ice pick had come from. He also said that the deceased did not grab the author by the waist. Counsel claims this is in evident contradiction with the evidence given by the main crown witness.

2.5       The case for the defence was one of self-defence based on the evidence given by the author, who stated that the events had taken place in his room. He claimed that he was listening to the radio when Officer Stephens broke into his room with a gun in his hand. The author testified that he jumped out of bed, grabbed Mr. Stephens by the collar and a fight ensued. Two shots were fired. The author took the ice pick from the table and stabbed Stephens twice. Mr. Stephens ran out of the house followed by the author. Stephens fired several shots against the author who ran off. On 1 May the author gave himself up to the police when he heard that the policeman had died.

2.6       A police officer gave evidence for the prosecution in which he stated that the author's room had been ransacked and the lock on the door forced.

The complaint

3.1       It is submitted that the delay of 1 month between arrest and appearance before a judicial officer and the delay of 3 days between his arrest and his being charged constitute a violation of articles 9, paragraphs 2, 3 and 4; and 14 paragraph 3 (a) of the Covenant. In this respect, counsel refers to the Committee's jurisprudence and General Comments.

3.2     Counsel also claims that the author is a victim of a violation of article 14 paragraph 1, because the Court of Appeal failed to remedy the trial judge's misdirections to the jury on the issue of provocation. The withdrawal of the issue of provocation from the jury deprived the accused of a defence which could have led to a conviction under the lesser offence of manslaughter, and amounted to a denial of justice. In this respect reference is made to the Committee's jurisprudence.

3.3     Counsel further submits that, when a barrister visited the author in prison in Jamaica the author informed him that he had been ill-treated while in detention, at St Catherine Police Station. The author claims to have been subjected to particularly rough treatment by the police officers upon arrest because he had been arrested for the murder of a police officer. He further claims that he was placed in a wet cell and forced to sleep on the floor. Some weeks after he had arrived some of the officers instructed another prisoner to beat him. Although his left eye was injured, he received no treatment until he appeared in court and the judge ordered the police to take him to a hospital. The author states in a letter to counsel that at some point after his arrest he was removed from his cell and placed in a cell "with the son of the man who in my self defence got killed in the matter between us. The son of the man and his friends thereupon attacked me in the cell immediately as the police officers put me with them". The author was treated at two public hospitals. Mr. Edwards, counsel who had represented the author at the preliminary hearing said that he remembered the incident; however, no documentation has been provided by Mr Edwards about the preliminary hearing with respect to this incident. The Jamaica Council for Human Rights also confirmed that the author had been treated, sometime in June 1983, at the Spanish Town Hospital and at the Kingston Public Hospital (Eye Clinic). On 22 February 1994, the author's counsel submitted a request to the Assistant Registrar of the Criminal Section of the Supreme Court in order to obtain the notes of the author's preliminary hearing. On 7 March 1994 he was informed that these could not be found.

3.4     Counsel submits that fundamental and basic requirements of the UN Standard Minimum Rules for the Treatment of Prisoners were not met during the author's detention at the St Catherine Police Station and that the treatment to which he was subjected while in detention, and the inadequate medical treatment he received, amount to violations of articles 7 and 10, paragraph 1, of the Covenant.

3.5     Counsel further submits that though the author did not pursue the matter of ill treatment while in detention this was for fear of reprisals, and stresses the ineffectiveness of the system, at the domestic level, in order to obtain redress. In this context, counsel argues that, since domestic remedies, and in particular the internal prison process and the complaints process of the Office of the Parliamentary Ombudsman, are not effective remedies, the requirements of article 5, paragraph 2 (b), of the Optional Protocol, have been met. In this respect counsel refers to the Committee's jurisprudence.

3.6       Counsel points out that the author was held on death row for almost seven years. Reference is made to the decision of the Judicial Committee of the Privy Council in the case of Pratt and Morgan, where it was held, inter alia, that it should be possible for the State party to complete the entire domestic appeals process within approximately two years. Counsel submits that the author's prolonged stay on death row amounts to a violation of articles 7 and 10, paragraph 1.

3.7       The author further claims a violation of articles 7, and 10, paragraph 1, because he was informed in January of 1987, that he was to be executed and was then placed in a death cell, where he remained for two weeks, before being returned to death row for another two years until his death sentence was commuted.

3.8       Finally, reference is made to the findings of a delegation of Amnesty International, which visited St. Catherine District Prison in November 1993. In Amnesty's report it is observed, inter alia, that the prison is holding more than twice the number of inmates for which it was constructed in the nineteenth century, and that the facilities provided by the State are scant: no mattresses, other bedding or furniture in the cells; no integral sanitation in the cells; broken plumbing, piles of refuse and open sewers; no artificial lighting in the cells and only small air vents through which natural light can enter; almost no employment opportunities available to inmates; no doctor attached to the prison so that medical problems are generally treated by warders, who lack proper training. It is submitted that the particular impact of these general conditions upon the author were that he was permanently confined to his cell except for an average of fifteen minutes a day and twice to empty out his slops bucket. His cell was infected with ants and other insects, he was only given a sponge with which to clean the cell. He further complained about the quality of the food and the sanitary conditions. The conditions under which the author was detained at St. Catherine District Prison are said to amount to cruel, inhuman and degrading treatment within the meaning of articles 7 and 10, paragraph 1, of the Covenant.

3.9       Counsel contends that, in practice, constitutional remedies are not available to the author because he is indigent and Jamaica does not make legal aid available for constitutional motions. Reference is made to the Human Rights Committee's jurisprudence. Counsel submits therefore that all domestic remedies have been exhausted for purposes of article 5, paragraph 2 (b) of the Optional Protocol.

State party's comments on admissibility and merits and counsel's comments thereon

4.1       In a submission of 3 November 1995, the State party waives the right to address the admissibility of the communication and addresses the merits of the author's claims. On the alleged violation of articles 7 and 10 (1) the State party refers to two incidents. In May 1983, the author was allegedly beaten leaving him with injuries to his left eye for which he received no medical treatment until ordered by the magistrate before whom he first appeared. The State party contends that there is a lack of written evidence to support the author's allegation, since the letter from the author's counsel is somewhat vague. It requested a copy of the letter London counsel had sent to Mr. Noel Edwards in Jamaica in order to ascertain exactly what it was that Mr. Edwards was confirming. It promised to respond to this allegation at a latter date, after investigating the matter. To date 6 July 1998 no further information has been received from the State party.

4.2       The State party also responds to the second claim of a violation of articles 7 and 10 because the author had spent 4 years on death row and was then placed in the death cell reserved for inmates for whom a warrant for execution has been issued. The State party notes that: “the author spent two weeks in the death cell during which he suffered severe stress, and then a stay of execution was issued”. It denies that these circumstances constitute a violation of the Covenant. Further, the State party contends that Pratt and Morgan v Attorney General of Jamaica, noted that if there was a delay of more than five years then there would be strong grounds for believing that the delay amounts to cruel and inhuman treatment. The period of four years in the present case does not fall within the time period which constitutes excessive delay. Furthermore, Pratt and Morgan may not be applied retroactively, and cannot therefore be applied to events which occurred in 1987.

4.3       On the issue of the author's stay in the death cell, the State party notes that: “it is natural that in those circumstances, the author would have felt some anxiety. This, however does not make it cruel and inhuman treatment to place him in a particular place, pending his legal execution. Nor does the fact that he spent two weeks there, while efforts were presumably made to have his execution stayed amount to a breach of articles 7 and 10 (1). Once a warrant for an execution has been issued, the Correctional Department Authorities are under a duty to take the relevant steps to carry out the execution. They should do so as humanly as possible, but the process set out for administrating a penalty is not contrary to the Covenant”.

4.4       On the alleged violation of article 9, paragraph 2, since the author was arrested and only charged 3 days after his detention, the State party notes that there is no evidence that the author was not made aware of the offence for which he was detained. During this three day period the author was moved from the Chapelton Police Station to the Spanish Town Police Station to the Criminal Investigation Branch in Kingston, where he was formally placed under arrest. The State party notes that the author was placed under arrest formally at the Police Station most prepared to make the case against the author. This does not mean that before this time the author was ignorant, in a general sense, of the charges against him.

4.5       With respect to the allegation that he was not brought promptly before a judicial officer in violation of article 9, paragraphs 3 and 4, the State party claims that he was brought before a magistrate approximately one month after his arrest. It concedes that this period is longer than desirable but rejects that it constitutes a breach of the Covenant.

4.6       On the alleged violation of article 14, paragraph 1, because the Court of Appeal failed to remedy the trial Judge's misdirection on provocation and that the test laid down by the Court of Appeal was incorrect or alternately incomplete. The State party notes that it is a well established principle that issues of facts and evidence including the trial Judge's instruction are best left to be reviewed by the Court of Appeal. Only in exceptional cases where injustice is manifest should the Committee review these issues. In this case, the State party contends that there is nothing in it to take it outside this principle, since the review done by the Court of Appeal was quite adequate, and that there has been no breach of article 14.

5.1       By submission of 12 February 1996, counsel provides copy of the letter sent to Mr. Noel Edwards, the author's counsel in Jamaica, in order that the State party may be clear of exactly what it was that Mr. Edwards was agreeing to in his letter to counsel in London, concerning the incident of ill-treatment by police and lack of medical treatment for the author's eye injury.

5.2       Counsel refutes the State party contention that Pratt & Morgan is not a retroactive decision, since the Privy Council recommended that:

"Rather than waiting for all those prisoners who have been on death row under sentence of death for five years or more to commence proceedings pursuant to Section 25 of the Constitution, the Governor General now refers all such cases to the JPC who, in accordance with the guidance contained in this advice, recommend commutation to life imprisonment, substantial justice will be achieved swiftly without provoking a flood of applications to the Supreme Court for constitutional relief pursuant to Section 17(1)".

It is therefore submitted that Pratt & Morgan was intended to assist those prisoners who had already served more than five years on death row and who had consequently been subjected to inhuman and degrading treatment. Counsel points out that the author has spent a total of 7 years on death row before his sentence was commuted to life imprisonment.

5.3       Counsel rejects the State party's contention that two weeks in a death cell, is not contrary to the Covenant, and reiterates the agony and stress suffered by the author in that period of time since the warrant of execution was read to him and the stay of his execution. Counsel submits that if the State party is of the opinion that the relevant steps to carry out an execution should be done as humanely as possible then humanity must require that a man be kept in the death cell awaiting his execution for a reasonable period of time only. He reiterates that the two weeks the author spent in the death cell were excessive and in violation of his rights under the Covenant.

5.4       Counsel notes that the State party concedes that the author was only charged 3 days after his arrest and rejects the State party's argument that the author must have been aware of the charges in "a general sense", reiterating that there has been a violation of articles 9(2) and 14 (3)(a).

5.5       Counsel notes that the State party has also conceded that the author was not brought before a magistrate until approximately one month after his arrest and reiterates that this constitutes a violation of article 9, paragraphs 3 and 4 of the Covenant. Reference is made to the Committee's jurisprudence in this respect.

5.6       Counsel reiterates the claims submitted in the original communication regarding unfair trial since the Court of Appeal did not remedy the trial Judge's misdirections to the jury on provocation.

Consideration of admissibility and examination of the merits

6.1       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 its admissible under the Optional Protocol to the Covenant.

6.2       The Committee has ascertained, as required under article 5, paragraph 2(a), of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

6.3       The Committee observes that with the dismissal of the author's petition for special leave to appeal by the Judicial Committee of the Privy Council on 15 December 1987, the author has exhausted domestic remedies for purposes of the Optional Protocol.

6.4       With respect to the author's allegations concerning unfair trial due to improper instructions from the judge to the jury withdrawing the issue of provocation from their consideration, and the failure of the Court of Appeal to remedy these, the Committee reiterates that while article 14 guarantees the right to a fair trial, it is generally for the courts of States parties to the Covenant to review the facts and evidence in a particular case. Similarly, it is for the appellate courts of States parties and not for the Committee to review the judge's instructions to the jury or the conduct of the trial, unless it is clear that the judge's instructions to the jury were arbitrary or amounted to a denial of justice, or that the judge manifestly violated his obligation of impartiality. The author's allegations and the trial transcript made available to the Committee do not reveal that the conduct of Mr. Pennant's trial suffered from such defects. In particular, it is not apparent that the judge's instructions on provocation were in violation of his obligation of impartiality. Accordingly, this part of the communication is inadmissible as incompatible with the provisions of the Covenant, pursuant to article 3 of the Optional Protocol.

7.         The Committee accordingly, declares the remaining claims admissible and proceeds, without further delay, to an examination of the substance of these, in the light of all the information made available to it by the parties, as required by article 5, paragraph 1, of the Optional Protocol.

8.1       Article 9, paragraph 2, of the Covenant gives the right to everyone arrested to know the reasons for his arrest and to be promptly informed of the charges against him. The author states that he went to the police station of his own accord on 1 May, 1983 and informed the officer in charge of his involvement in the death of Stephens. He was detained, transferred to another police-station and formally arrested and charged three days later. In these circumstances, when it must have been absolutely clear to the author that his detention and subsequent arrest were for involvement in the death of Stephens, the Committee cannot conclude that the author's right to be informed of the reasons for his arrest was violated. Furthermore, the author was formally charged with the murder of Stephens three days after first being detained, following what must have been an initial investigation. The duty to be promptly informed of the charges against one, as opposed to the reason for one's arrest, cannot arise until such charges have been determined. In the present case, it does not seem that a period of three days from the time of detention until formal charge of the author, amounted to a violation of his right to be promptly informed of the charges against him.

8.2       With regard to the author's claim under articles 9, paragraphs 3 and 4, and 14, paragraph 3 (a), the Committee notes that it is uncontested that the author was only first brought before a judge or other officer authorized by law to exercise judicial power one month after his arrest. It also notes that the State party has conceded that this period is undesirably long. Accordingly, the Committee concludes that the period between the author's arrest and his being brought before a judge was too long and constitutes a violation of article 9, paragraph 3, of the Covenant and, to the extent that this prevented the author from access to court to have the lawfulness of his detention determined, of article 9, paragraph 4.

8.3       With respect to the author's claim that he was beaten while in police custody and did not receive medical treatment until the committing magistrate ordered the police to take him to hospital, the State party has alleged that this complaint was vague and requested that counsel provide a copy of the letter sent to the author's counsel in Jamaica, requesting confirmation of the said incident. The Committee notes that despite having sent this letter to the State party on 15 March 1996 and the State party's promise to investigate the incident once it was clear which event counsel had confirmed, no information has been received. The Committee consequently considers that due weight must be given to the author's complaint to the extent to which it has been substantiated and accordingly, finds that the treatment the author received at the hands of the police while in detention is in violation of articles 7 and 10, paragraph 1, of the Covenant.

8.4       With regard to the conditions of detention at St. Catherine's District Prison, the Committee notes that the author has made specific allegations, about the deplorable conditions of his detention. He claims that he was permanently confined to his cell except for an average of 15 minutes twice everyday to empty his slops bucket. That his cell was infested with ants and other insects, that he only has a sponge with which to clean the cell. He also complained of the abysmal quality of the food and the sanitary conditions. The State party has not refuted these specific allegations. In these conditions, the Committee finds that confining the author under such circumstances constitutes a violation of article 10, paragraph 1, of the Covenant.

8.5       With regard to the author's claim that his prolonged detention on death row amounted to a violation of articles 7, and 10 paragraph 1, of the Covenant, the Committee reiterates its prior jurisprudence that prolonged detention on death row does not per se constitute cruel, inhuman or degrading treatment in violation of article 7 of the Covenant, in the absence of further compelling circumstances.

8.6       With regard to the claim made by counsel that the author was placed in a death cell for two weeks after a warrant of execution was read to him. The Committee notes the State party's contention that it is to be expected that this would cause the author "some anxiety", and that the time spent there was because efforts were "presumably" being made to have his execution stayed. The Committee considers that in the absence of a detailed explanation by the State party as to the reasons for the author's two weeks stay in a death cell, this cannot be deemed to be compatible with the provisions of the Covenant, to be treated with humanity. Consequently, the Committee finds that article 7 of the Covenant has been breached.

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 articles 7, 9 paragraphs 3 and 4, 10, paragraph 1, of the Covenant.

10.       Pursuant to article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Mr. Pennant with an effective remedy, entailing compensation for the ill-treatment received and early release, especially in view of the fact that the author was already eligible for parole in December of 1996.

11.       On becoming a State party to the Optional Protocol, Jamaica recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not. This case was submitted for consideration before Jamaica's denunciation of the Optional Protocol became effective on 23 January 1998; in accordance with article 12(2) of the Optional Protocol it continues to be subject to the application of the Optional Protocol. Pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals with its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established. The Committee wishes to receive from the State party, within ninety days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

         O. Communication No. 649/1995, Forbes v. Jamaica

             (Views adopted on 20 October 1998, sixty-fourth session)*

Submitted by:                                   Winston Forbes

(represented by Mr. S. Lehrfreund from Simons Muirhead and Burton, a law firm in London)

Alleged victim:                                The author

State party:                                       Jamaica

Date of communication:                   8 November 1994 (initial submission)

Date of decision on

admissibility:                                   20 October 1998

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

            Meeting on 20 October 1998,

            Having concluded its consideration of communication No.649/1995 submitted to the Human Rights Committee by Winston Forbes, 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 Winston Forbes, a Jamaican national, currently serving a prison term at St. Catherine District Prison, Jamaica. He claims to be a victim of violations by Jamaica of articles 2, paragraph 3; 7; 9, paragraphs 2, 3 and 4; 10, paragraph 1; and 14, paragraph 3 (b) and (d), of the International Covenant on Civil and Political Rights. He is represented by Mr. Saul Lehrfreund of the London law firm Simons Muirhead & Burton.

____________

            * The following members of the Committee participated in the examination of the present communication: Mr. Prafullachandra N. Bhagwati, Mr. Thomas Buergenthal, Lord Colville, Mr. Omran El Shafei, Ms. Elizabeth Evatt, Ms. Pilar Gaitán de Pombo, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Martin Scheinin, Mr. Roman Wieruszewski, Mr. Maxwell Yalden and Mr. Abdallah Zakhia.

Facts as submitted by the author

2.1       The author was convicted of the murder of one Michael Brown and sentenced to death on 25 January 1984, by the Home Circuit Court, Kingston, Jamaica. His appeal was dismissed by the Court of Appeal of Jamaica on 20 February 1987. On 21 June 1993, the author's petition for Special Leave to Appeal to the Judicial Committee of the Privy Council was dismissed. The author's death sentence has been commuted.

2.2       The case for the prosecution was that, on 6 May 1982, at 18.00, the author went to the Crystal Theatre, argued with Michael Brown about politics, and then left. Later in the evening, at 20.00, when the author returned and tried to enter without paying, an argument broke out between him and Michael Brown. The author then left. Brown and the theatre manager called the police, who came, made inquires and left. A few minutes after the police had left, the author returned, remonstrated with Mr. Brown and shot him.

2.3       During the trial, Franklin White testified that, on 6 May 1982, at around 19.00, the author went to the theatre and tried to enter without paying. When chided by Mr. Brown, the author grabbed him by the collar and threatened him saying "You want me shoot you", then left. He further testified that Mr. Brown and the theatre manager called the police. Just after the police had gone the author returned and rebuked Brown saying "you call the police on me" and shot him. The deceased was sitting in the cashier's booth at the entrance of the theatre, next to Eustance Stephenson.

2.4       Eustance Stephenson identified the author during the trial and testified that he had been at school with him. The witness further testified that at the time of the murder, at 9.35 p.m. he had been sitting next to the deceased in the cashier's booth.

2.5       A third witness Alvin Comrie also testified to having seen the murder from where he was standing just inside the theatre.

2.6       Leslie Ashman, the investigating officer of the Spanish Town Police Station, testified that he obtained a warrant for the author's arrest; on 31 May 1982, he arrested and charged him with the murder of Michael Brown. He further testified that the author claimed to be called Paul Wright from Central Village; however, Newton Forbes, the author's father, who was present at the police station, identified him as his son.

2.7       The author gave sworn evidence, admitting to having been to the Crystal Theatre at around 18.00 and arguing about politics with Michael Brown, but denying that he had returned and shot him. He testified that he had gone to his father's shop at about 20.30 and stayed there all night. Since the author denied having committed the murder, the issue at the trial was one of identification and the defence was solely directed at the witnesses' credibility and their ability, given the lighting in the theatre hall at the time of the incident, to correctly identify the author. The author was represented by a legal aid attorneys. The only witness called to testify on the author's behalf was his father who testified that the author had been with him from 20.30 to around 23.00 hours.

The complaint

3.1       It is stated that the trial, which started on 23 January 1984, took longer than both the trial judge and counsel had expected. On the morning of 24 January 1984, the trial judge had to send away a number of jurors in waiting who had been summoned for that day to attend another trial saying "Members of the jury in waiting we thought we'd do another case this morning, but we thought wrongly ...". Further just before the lunch recess on 24 January 1984, while the author was giving his evidence in chief to the jury, senior counsel addressed the judge and explained that he had committed himself to attending a funeral at three o'clock; after a short discussion, it was agreed that senior counsel would finish the examination in chief and that junior counsel should re-examine. However, after the lunchtime recess, junior counsel continued the examination in chief and senior counsel re-examined, being excused by the judge at 14.32. Counsel submits that the author was deprived of proper representation at a very important stage of his trial, because his senior legal aid counsel put a personal engagement before his professional duty, his evidence in chief to the jury being unexpectedly and improperly interrupted; this is said to amount to a violation of article 14, paragraph 3 (d), of the Covenant.

3.2       Counsel claims that had the author known that senior counsel was going to leave early he would have asked that counsel request an adjournment. Counsel refers to the Committee's jurisprudence and submits that what took place at the trial was a material irregularity in the conduct of the same and amounts to a violation of article 14, paragraph 3 (b), of the Covenant.

3.3     In an affidavit, dated 27 October 1994, the author claims that he spent about two weeks in detention before he was charged for murder, without seeing a lawyer. On 14 May 1982, the author was taken into custody at Ochos Rios Police Lock-Up. He was later transferred to Admiral Town Police Station, before he was moved to the Spanish Town Lock-Up, where he was charged and arrested on 31 May 1982. He claims that it took a further two weeks for him to be brought before a judge. It is submitted that this constitutes a violation of article 9, paragraphs 2, 3 and 4, of the Covenant. In this respect counsel refers to the Committee's jurisprudence and General Comments.

3.4     The author claims, in a letter sent to counsel in London, that he was ill-treated while in detention at Spanish Town Lock-Up; stating "I was severely beaten by two police officers who used a baton to hit me in my head and continued punching me all over my body. I informed my family of the ill-treatment and they arranged for the doctor, Dr. Richard, to examine me at the Spanish Town Lock-Up. Although I was badly bruised and cut, the doctor confirmed that I had no broken bones". The author explains that this police brutality was not brought to the attention of his lawyer at the preliminary hearing because so much time had elapsed.

3.5     Counsel submits that fundamental and basic requirements of the UN Standard Minimum Rules for the Treatment of Prisoners were not met during the author's detention at the Spanish Town Lock-Up and that the treatment to which he was subjected while in detention and the inadequate medical treatment he received amount to violations of articles 7 and 10, paragraph 1, of the Covenant. Counsel points out that the author did not bring the matter to the attention of his lawyer due to the lapse of time, and stresses the ineffectiveness of the system, at the domestic level,in order to obtain redress. Counsel concludes that, since domestic remedies, and in particular the internal prison process and the complaints process of the Office of the Parliamentary Ombudsman, are not effective remedies, the requirements of article 5, paragraph 2(b), of the Optional Protocol, have been met. In this respect counsel refers to the Committee's jurisprudence.

3.6       Counsel points out that the author was held on death row for over eleven years; reference is made to the decision of the Judicial Committee of the Privy Council in the case of Pratt and Morgan, where it was held, inter alia, that it should be possible for the State party to complete the entire domestic appeals process within approximately two years. Counsel submits that the author's prolonged stay on death row amounts to a violation of articles 7 and 10, paragraph 1.

3.7     Finally, counsel alleges a violation of articles 7 and 10, paragraph 1, on the grounds of the conditions of his detention both prior to and after his conviction. As to the latter, reference is made to the findings of a delegation of Amnesty International, which visited St. Catherine District Prison in November 1993. In Amnesty's report it is observed, inter alia, that the prison is holding more than twice the number of inmates for which it was constructed in the nineteenth century, and that the facilities provided by the State are scant; no mattresses, other bedding or furniture in the cells; no integral sanitation in the cells; broken plumbing, piles of refuse and open sewers; no artificial lighting in the cells and only small air vents through which natural light can enter; almost no employment opportunities are available to inmates; no doctor is permanently attached to the prison so that medical problems are generally treated by warders who lack proper training. It is submitted that the particular impact of these general conditions upon the author were that he was confined to his cell for twenty-three hours and forty-five minutes every day. He spent most of the day isolated from other men, with nothing to keep him occupied. Much of the time he spent in enforced darkness. He further complained about the quality of the food and the sanitary conditions. The conditions under which the author was detained at St. Catherine District Prison are said to amount to cruel, inhuman and degrading treatment within the meaning of articles 7 and 10, paragraph 1, of the Covenant.

3.8     Counsel contends that, in practice, constitutional remedies are not available to the author because he is indigent and Jamaica does not make legal aid available for constitutional motions. Reference is made to the precedent set by the Judicial Committee of the Privy Council and to the Human Rights Committee's jurisprudence. Counsel submits therefore that all domestic remedies have been exhausted for purposes of article 5, paragraph 2 (b), of the Optional Protocol.

3.9     It is stated that the case has not been submitted to another procedure of international investigation or settlement.

State party's information and observations and counsel's comments thereon

4.1     In its observations of 19 October 1995, the State party does not formulate objections to the admissibility of the case and offers, “in the interest of expediting the Committee's processing of the application”, comments on the merits of the communication.

4.2     With regard to the alleged violation of article 9 on the ground that the author had not been informed of the charges against him until ten days after his arrest, the State party denies that this occurred. It is submitted that there is no evidence that the author, at the time of his arrest, was not made aware of the general reasons for his arrest.

4.3     With regard to the alleged violation of article 9 on the ground that the author was not brought before a Magistrate until two weeks after his detention, the State party admits that two weeks is longer than desirable, but does not accept that article 9 was violated. It is submitted that “part of the reason for the delay was the transfer of the author from Ochos Rios Police Lock-up to Spanish Town Lock-up.”

4.4      As to the author's claim that article 14, paragraphs 3(b) and 3(d), were violated because on the last day of his trial, senior counsel had to leave due to a personal engagement and left junior counsel to examine in chief the author's only alibi witness and to address the jury, the State party contends that the State is not responsible for the conduct of a case by counsel. The State party submits that the State's responsibility is to provide competent counsel to represent an accused person, and argues that junior counsel in this case was a competent attorney who had been actively involved in the preparation of the case, and in the opinion of the senior counsel was well able to perform the duties given to him.

4.5     With regard to the alleged violations of articles 7 and 10 on the ground that the author was beaten by a police officer at the Spanish Town Lock-up, the State party denies that such a incident occurred. The State party argues that the author has no independent evidence to confirm the fact that he was injured. He states that he was seen by a doctor provided by his family, but has not produced a medical report or any other documentary evidence confirming his injuries. Furthermore, the State party points out that the preliminary inquiry began in August 1982, whilst the alleged beatings occurred after the author's arrest on 31 May 1982, and yet the author did not inform his attorney of the incident. The State party submits that in these circumstances, the credibility of the author's allegation is debatable.

4.6     As to the author's claim that articles 7 and 10 were violated as the author was in detention on death row for a period of more than 10 years, the State party submits that a prolonged stay on death row per se does not automatically constitute cruel and inhuman treatment, but that the facts of each case must be examined according to the applicable legal principles.

5.1     In his comments of 9 January 1996 on the State party's submission, counsel agrees to the joint examination of the admissibility and the merits of the case. He reaffirms that his client is a victim of a violation of article 9, paragraph 2, on the ground that the author was not made aware of the general reasons for his arrest before two weeks after his arrest. It is submitted that evidence for this is placed before the Committee, as the author in a sworn Affidavit on 27 October 1994 stated that “I spent two weeks in detention before I was charged with murder.” Counsel further argues that the State party's denial is not supported by any positive evidence countering the Affidavit of the author.

5.2     Counsel also reaffirms that his client is a victim of a violation of article 9, paragraphs 3 and 4, as he was not brought before a Magistrate before two weeks after his detention. Counsel argues that the word “promptly” must be interpreted as not to permit a delay of more than two or three days. Reference is made to the Committee's jurisprudence.

5.3     As to the alleged violation of article 14, paragraphs 3(b) and 3(d), counsel reiterates that it is axiomatic that legal assistance be made available in capital cases and that once assigned, legal assistance must provide effective representation. It is submitted that the duty of the State party goes further than merely providing legal assistance in a capital case and that their duty must be to provide effective representation. Reference is made to the Committee's jurisprudence.

5.4     As to the alleged violation of articles 7 and 10 on the ground that the author was beaten during his pre-trial detention at Spanish Town Lock-Up, counsel submits that in the circumstances that prevail within the prisons and lock-ups in Jamaica, it is extremely difficult for an inmate to substantiate allegations of ill-treatment by making complaints directly to the prison authorities due to the fear of reprisals. Reference is made to reports by the Ombudsman of Jamaica and Amnesty International. It is also submitted that evidence of the beatings is placed before the Committee as the allegations are contained in the author's Affidavit of 27 October 1994 and in his letters to counsel of 7 September 1993, 27 July 1994 and 29 August 1994.

Consideration of admissibility and examination of the merits

6.1     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.

6.2     The Committee observes that with the dismissal of the author's petition for special leave to appeal by the Judicial Committee of the Privy Council on 21 June 1993, the author has exhausted domestic remedies for purposes of the Optional Protocol. The Committee notes that the State party has not raised objections to the admissibility of the complaint and has forwarded comments on the merits so as to expedite the procedure. The Committee, accordingly, decides that the case is admissible and proceeds, without further delay, to an examination of the substance of the author's claims, in the light of all the information made available to it by the parties, as required by article 5, paragraph 1, of the Optional Protocol.

7.1     With respect to the author's claim that he is a victim of a violation of article 14, paragraphs 3(b) and 3(d), as senior counsel on the last day of the trial proceedings had to leave the court on a personal engagement and thereby left to junior counsel the remainder of the examination-in-chief of the author, the examination-in-chief of the author's only alibi witness, and the closing argument, the Committee recalls its prior jurisprudence where it has held that the State party cannot be held accountable for any alleged deficiencies in the defence of the accused or alleged errors committed by the defence lawyer, unless it should have been manifest to the court that the lawyer's behaviour was incompatible with the interests of justice. In the instant case, the information in the file does not support an allegation that junior counsel was not qualified to give effective, legal representation. It is clear that it was both senior counsel's and the trial judge's opinion that the remainder of the defence was left in capable hands. The file shows that junior counsel was a qualified lawyer, and that he had worked closely with senior counsel in the preparation of the case. The trial transcripts show that he had conducted the cross-examination of several of the Prosecution's witnesses earlier in the proceedings. In the circumstances, the Committee concludes that there has been no violation of article 14 of the Covenant.

7.2     Article 9, paragraph 2, of the Covenant gives the right to everyone arrested to know the reasons for his arrest and to be promptly informed of the charges against him. Article 9, paragraph 3, gives anyone arrested or detained on a criminal charge the right to promptly be brought before a competent judicial authority. The author contends that he was not informed of the reasons for his arrest until two weeks after he was first arrested, and that it took a further two weeks before he was brought before a magistrate. The author claims to have been detained at the Ochos Rios Police Lock-Up in May 1982, and that he was later transferred to the Admiral Town Police Station in Kingston before he on 31 May 1982 was taken to Spanish Town Lock-Up where he was officially charged with the murder. The author claims that he was originally detained at least 14 days before he was officially charged. The State party denies that the author during this period was unaware of the general reasons for his arrest. However, the State party does not deny that from the arrest of the author at least 14 days passed before he was brought before a magistrate. According to the State party, part of the reason for the delay was the transfer of the author from Oche Rhos Police Lock-Up to Spanish Town Lock-Up. In the circumstances, and notwithstanding the State party's arguments, the Committee finds that to detain the author for a period of 14 days before bringing him before a competent judicial authority constitutes a violation of article 9, paragraph 3, of the Covenant.

7.3     As to the author's claim that he is a victim of a violation of articles 7 and 10, paragraph 1, on the ground that he was severely beaten by two police officers while at Spanish Town Lock-Up, the Committee notes both that the author has not given any medical evidence of such an occurrence, and that he has failed to bring these allegations to the attention of his former lawyers and the courts. The author has explained that this failure was due partly to the lapse of time from the occurrence until he obtained counsel, and partly to the fear of reprisals. The Committee notes, however, that the author in his statement of 8 September 1994 claims that the beatings occurred in July of 1982, and that he in his letter of 7 September 1993 claims that he had contact with his counsel, Mr. Robert Pickersgill, several times before the preliminary hearings started in August 1982. Subsequently, there does not appear to have been much of a lapse of time from the alleged beatings until the author obtained contact with his lawyer. The Committee also notes that the author soon after the alleged beatings was moved from Spanish Town Lock-Up to the General Penitentiary, and therefore any fear of reprisal should have been reduced. In these circumstances, on the basis of the information before it, the Committee concludes that the author has not substantiated his claim and, accordingly, there is no basis for finding a violation of articles 7 or 10 on the ground of beatings. Consequently, the Committee also finds that there is no basis for finding a violation of articles 7 and 10 on the ground of inadequate medical treatment during the author's detention at Spanish Town Police Lock-Up.

7.4     The Committee must determine whether the length of time the author spent on death row - more than 11 years - amounts to a violation of articles 7 and 10, paragraph 1, of the Covenant. Counsel has claimed a violation of these provisions by reference to the length of time the author was confined to death row. It remains the Committee's jurisprudence that detention on death row for a specific time does not violate articles 7 and 10, paragraph 1, in the absence of 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 finds that it does not per se constitute a violation of articles 7 and 10, paragraph 1.

7.5     The author has alleged violations of articles 7 and 10, paragraph 1, on the grounds of the conditions of his pre-trial detention at the General Penitentiary and his detention at St. Catherine's District Prison. The Committee notes that the author, as to the conditions of detention in St. Catherine's District Prison, in his original communication made specific allegations regarding the deplorable conditions of detention. He alleged that he throughout his detention there has spent twenty-three hours and forty-five minutes each day in solitary confinement, with nothing to keep him occupied, and in enforced darkness. The State party has 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 a violation of article 10, paragraph 1.

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 violations of articles 9, paragraph 3, and 10, paragraph 1.

9.       In accordance with article 2, paragraph 3(a), of the Covenant, the State party is under an obligation to provide Mr. Forbes with an effective remedy including compensation. The State party is under an obligation to ensure that similar violations do not occur in the future.

10.     On becoming a State party to the Optional Protocol, Jamaica recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not. This case was submitted for consideration before Jamaica's denunciation of the Optional Protocol became effective on 23 January 1998; in accordance with article 12(2) of the Optional Protocol it continues to be subject to the application of the Optional Protocol. Pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subjected 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 ninety days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

         P. Communication No. 653/1995, C. Johnson v. Jamaica

             (Views adopted on 20 October 1998, sixty-fourth session)*

Submitted by:                         Colin Johnson

(represented by Saul Lehrfreund from the London law firm of Simons Muirhead and Burton)

Victim:                                   The author

State party:                             Jamaica

Date of communication:         13 September 1995 (initial submission)

Date of decision on

admissibility:                          20 October 1998

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

          Meeting on 20 October 1998,

          Having concluded its consideration of communication No. 653/1995 submitted to the Human Rights Committee by Mr. Colin Johnson, 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 Colin Johnson, a Jamaican citizen currently imprisoned in the General Penitentiary, Kingston, Jamaica. The author claims to be a victim of violations by Jamaica of articles 7, 10 and 14 of the International Covenant on Civil and Political Rights. He is represented by Mr. Saul Lehrfreund, of the London Law firm, Simons Muirhead & Burton.

________________

          * The following members of the Committee participated in the examination of the present communication: Mr. Prafullachandra N. Bhagwati, Mr. Thomas Buergenthal, Lord Colville, Mr. Omran El Shafei, Ms. Elizabeth Evatt, Ms. Pilar Gaitán de Pombo, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Julio Prado Vallejo, Mr. Martin Scheinin, Mr. Roman Wieruszewski, Mr. Maxwell Yalden and Mr. Abdallah Zakhia.

Facts as submitted by the author

2.1     On 5 April 1984, the author was arrested and charged with the murder of one Winston Davidson on 23 March 1984. On 23 September 1985, the trial against the accused started in the Home Circuit Court. On 26 September 1985, the author was found guilty of murder and sentenced to death. The Court of Appeal of Jamaica refused the author's Application for Leave to Appeal on 20 May 1987. An application for Leave to Appeal to the Privy Council was filed in the Court of Appeal on 1 July 1987, but the matter was adjourned "sine die". Counsel reformulated the point of law with which the Court had been dissatisfied and relisted the notice of motion on 4 November 1987. Nevertheless, the matter remained "sine die" on the records of the Court of Appeal.

2.2     On 26 July 1988, the Committee declared an earlier communication submitted by the author inadmissible because of non-exhaustion of domestic remedies, since it appeared from the information before the Committee that the author had failed to petition the Judicial Committee of the Privy Council for special leave to appeal. The decision provided for the possibility of review of admissibility, pursuant to rule 92, paragraph 2, of the Committee's rules of procedure. On 26 July 1993, the author's petition for Special Leave to Appeal to the Judicial Committee of the Privy Council was dismissed. It is therefore submitted that all available domestic remedies have been exhausted.

2.3       On 18 December 1992, the author's offence was classified as non-capital murder under the Offences Against the Person (Amendment) Act 1992. The length of term to serve before becoming eligible for parole is 20 years.

2.4       The author submits that he has not filed a constitutional motion, since no legal aid is available in Jamaica for this purpose. In this connection, the author refers to the Committee's jurisprudence and submits that the application should therefore be admissible under the Optional Protocol.

2.5       The case for the prosecution was based on the evidence of one eye witness of events, the deceased's cousin, Kenneth Morrison. He gave evidence to the effect that he was working at his fish stall in the morning of 23 March 1984 when his cousin, Winston Davidson, passed by and had a brief conversation with him. At this point his cousin was uninjured. Winston Davidson then continued and went out of the witness's sight. About five minutes later, Kenneth Morrison heard three to four gunshots from the direction of where his cousin had gone. Three to five minutes later he saw the deceased running back. Three yards behind were the author, the author's brother and his sister who were pursuing Winston Davidson. Colin Johnson was carrying a gun pointing it at the deceased. Davidson was not carrying anything in his hand; he was wounded with blood coming out of his mouth and stomach. When Colin Johnson saw the witness he stopped and, after the witness had occasion to see him from a distance of about 15 to 20 yards for a moment, Colin Johnson, his brother and sister disappeared. Winston Davidson continued running; he was then put into a car and taken to hospital. At this point he was still alive. A pathologist gave evidence that Winston Davidson was dead on examination at the hospital later on 23 March 1984.

2.6       Kenneth Morrison's evidence was that he had known the defendant for about seven years. He was a friend of the defendant and saw him almost every day. Kenneth Morrison first made a statement to the police on 5 April 1984. He stated that the reason he had not been to the police earlier was that he was frightened of making a statement until the suspect was in custody.

2.7       At the trial, a detective corporal gave evidence that he arrested Colin Johnson on 5 April 1984. After telling the accused that he was wanted by the police in connection with a murder that had occurred in a certain area of Kingston, Colin Johnson replied:

"Mr. Cassell, ah the bwoy first shoot at me sah.".

Cassell's evidence was that he had written down this comment at the time on a scrap of paper. Colin Johnson did not sign this piece of paper. Cassell never wrote it down in an officer's notebook and since had been unable to find it. Cassell admitted in cross examination that the area in question was an area with a high crime rate and frequent gun violence. Sergeant Lloyd Hayley, an officer in the case who had taken Colin Johnson into custody, gave evidence that he had arranged a confrontation between Colin Johnson and the witness, Morrison.

2.8       The case for the defence was based on alibi; the author made an unsworn statement from the dock saying that he was not in the area in question on the day of the crime. He called no witnesses in support of his alibi. He denied that he had said

"Ah the bwoy first shoot at me sah."

on arrest. He alleged that Kenneth Morrison was lying when he said that he had seen him running after the deceased. He said that he had worked with Morrison in 1982 on a building site. Both Colin Johnson and Kenneth Morrison had been suspected of selling materials from the site. Morrison had been held responsible and dismissed. Kenneth Morrison had since held a grudge against him; hence his motivation for lying in Court.

2.9       Colin Johnson called one witness in his support, Wesley Suckoo. His evidence was that he had driven Winston Davidson to hospital on 23 March 1984 and that during the journey the dying man told him who it was who shot him and that this person was not Colin Johnson.

The complaint

3.1       The author claims that the trial against him was unfair and partial. He submits that the judge misdirected the jury in failing to give a general warning as to the dangers of relying on identification evidence. Such a warning would have been particularly important in the present case as the distance between the witness and the accused of 15 to 20 yards would have been sufficiently far for there to be at least the real possibility of mistake. It is stated that the judge also failed to remind the jury that it is possible for a honest witness to be a mistaken witness.

3.2       Further, it is claimed that the judge, in his summing-up, cast serious doubts on the credibility of the defence witness and treated the evidence of the chief prosecution witness, Kenneth Morrison, in a favourable way. In this connection, it is submitted that, during the cross-examination of the driver of the car that brought Davidson to hospital, the judge intervened 58 times in a manner which allegedly violated his duty of impartiality. Counsel claims that this deprived the author of having his defence considered fairly, impartially and objectively by the jury.

3.3       It is also alleged that the judge deprived the applicant of a chance of acquittal when he directed the jury that it was an unreasonable inference on the basis of the evidence to conclude that someone else shot Mr. Davidson.

3.4       Finally, it is submitted that the judge expressly withdrew the issue of self defence from the jury, even though the issue was raised in the evidence of the prosecution. Counsel states that the trial judge has a duty to explain and to leave possible defences to the jury even when not raised by the defence. It is therefore submitted that for the above-mentioned reasons, the author is a victim of a violation of article 14, paragraph 1 of the Covenant.

3.5       The author further submits that he was beaten by five warders on 20 November 1986 whilst detained on death row in St. Catherine District Prison, Jamaica. He states that his hand was broken. Approximately three weeks after the incident he was admitted to hospital for treatment. Until this time he was denied medical attention. Upon receipt of a letter by Colin Johnson dated 3 December 1986, his Jamaican attorney telephoned the superintendent in charge of St. Catherine District Prison and informed him of the report received concerning Mr. Johnson and asked for a complete investigation of the matter. The Jamaican attorney never received a response, although one was promised. The author also contacted the prison superintendent himself, the Ombudsman of the Jamaican Parliament and the Jamaica Council for Human Rights. The Ombudsman answered that he had received a letter of the Department of Correctional Services, dated 4 December 1989, in which it is confirmed that three death row inmates, among whom was the author, had been party to an insurrection on 20 November 1986. As a result of that incident the authorities had used force to quell the uprising. The inmates were treated by the Institution's Doctor for the injuries documented on their medical record. The record for Colin Johnson, however, showed no evidence of him receiving any medical treatment on the day in question. It is submitted that this letter shows that the author was subjected to ill-treatment on 20 November 1986 and that he furthermore did not receive any medical treatment on that day.

3.6       It is further stated that three death row inmates died as a result of injuries inflicted during a prison disturbance on 28 May 1990. In August 1991, during the investigation relating to this matter, several other inmates reported to have been injured by warders during the quelling of the disturbance. In this context, the author's mother, Mrs. Hazel Bowers stated in a sworn affidavit taken on 8 June 1990, that her son "appeared to be very frightened", that he had told her that the warders had reportedly threatened to kill as many inmates as possible, since they would not rely on the government to carry out the executions. They had beaten the men with "iron pipes, big sticks, batons and whatever implements they could get hold on". Mrs. Bowers stated that since the killings, the death row inmates were"living in fear of losing their lives at the hands of the warders" and that her son had appealed to the Jamaica Council for Human Rights to intervene on the inmates' behalf. It is submitted that the suffering endured by Johnson, who was being forced to live in an atmosphere of violence, constantly feeling vulnerable or afraid, amounted to inhuman treatment, in breach of article 7 and 10, paragraph 1, of the Covenant.

3.7       Until his reclassification as a non-capital offender in December 1992, the author was on death row for a period of over 7 years. Counsel argues that the mere fact that the author will no longer be executed does not nullify the mental anguish for the 7 years facing the prospect of being hanged. It is submitted that the death row incarceration can constitute inhuman and degrading treatment, the so-called "death-row phenomenon", which is recognised by the jurisprudence of various courts.

3.8       It is stated that Mr. Johnson's cell on death row measured 6' x 9', and was poorly lit with long periods spent in almost total darkness; there was only a concrete slab for sleeping and no integral sanitation. It is submitted that these factors are sufficient in themselves to constitute breaches of articles 7 and 10, paragraph 1, of the Covenant.

3.9       The author states, referring to Amnesty International's report of December 1993 on a "Proposal for an Inquiry into Deaths and Ill-Treatment of Prisoners in St. Catherine District Prison", that serious complaints by prisoners have apparently not been acted upon and that the Ombudsman office does not have the powers of enforcement and that its recommendations are non-binding. It is therefore submitted that, with respect to his claims under articles 7 and 10 of the Covenant, Colin Johnson has satisfied the requirements of article 5, paragraph 2 (b), of the Optional Protocol, due to the inadequacy of the domestic complaints process.

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

4.1       In its submission, dated 3 May 1996, the State party with respect to the allegation of prolonged detention on death row contends that on the basis of the Committee jurisprudence in the decision of Pratt and Morgan v. Jamaica, it does not accept that a prolonged stay on death row per se constitutes cruel and inhuman treatment. Each case must be examined on its own facts. Consequently, it rejects a violation of the Covenant. With respect to the allegation of ill-treatment by warders in 1987 and the denial of medical treatment after the beatings the State party has promised to investigate the matter to date, 6 July 1998, no further information has been received by the Committee.

4.2       With respect to the allegations of unfair trial arising from the judge's directions to the jury on identification evidence and the judge's withdrawal of self-defence from the jury, in violation of article 14, paragraph 1, of the Covenant, the State party refers to the Committee's own jurisprudence, with regard to the evaluation of facts and evidence.

5.         In his comments, dated 20 June 1996, counsel points out that the State party has not addressed all the claims and has promised an investigation. In this respect, counsel states that the State party has not rebutted the allegations regarding the author's ill-treatment while on death row at St. Catherine District Prison, in particular the incident of 20 November 1996 where the author's hand was broken. Counsel also refers to an incident, on 28 May 1990, where the author saw three inmates being beaten to death this had led him to subsequently live in fear of losing his own life at hands of warders.

Consideration of admissibility and examination of the merits

6.1       Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

6.2       The Committee has ascertained, as required under article 5, paragraph 2(a), of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

6.3       The Committee observes that with the dismissal of the author's petition for special leave to appeal by the Judicial Committee of the Privy Council on 26 July 1993, the author has exhausted domestic remedies for purposes of the Optional Protocol. In the circumstances of the case, the Committee is not aware of any obstacle to the admissibility and finds it expedient to proceed with the examination of the merits of the case. In this context, it notes that the State party has not contested the admissibility of the communication and has proceeded to comment on the merits.

6.4       With respect to the author's claims about irregularities in the court proceedings, improper instructions from the judge to the jury on the issue of identification, the Committee reiterates that, while article 14 guarantees the right to a fair trial, it is not for the Committee to review specific instructions to the jury by the judge in a trial by jury, unless it can be ascertained that the instructions to the jury were clearly arbitrary or amounted to a denial of justice, or that the judge manifestly violated his obligation of impartiality. The material before the Committee does not show that the judge's instructions suffered from such defects. Accordingly, this part of the communication is inadmissible as incompatible with the provisions of the Covenant, pursuant to article 3 of the Optional Protocol.

7.         The Committee declares the remaining claims admissible and proceeds, without further delay, to an examination of the substance of these claims, in the light of all the information made available to it by the parties, as required by article 5, paragraph 1, of the Optional Protocol.

8.1       The Committee must determine whether the length of the author's detention on death row, over seven years, under allegedly deplorable circumstances, at St. Catherine district Prison, violated article 7 of the covenant. It remains the jurisprudence of this Committee that detention for a specific period of time does not amount to a violation of articles 7 and 10, paragraph 1, of the Covenant in the absence of some further compelling circumstances. The author has related two incidents which occurred on 20 November 1986 and 28 May 1990, where he was beaten by warders and lack of medical treatment as well as threats to his life, which he documented in complaints to his counsel in Jamaica, the prison superintendent, the Parliamentary Ombudsman of Jamaica and to the Jamaica Council for Human Rights. The State party has promised to investigate these claims, but has failed to forward to the Committee its findings, almost two years after promising to do so. In these circumstances, in the absence of any information from the State party, the Committee finds a violation of article 7 of the Covenant.

8.2       The author has also made specific allegations, about the deplorable conditions of his detention. He claims that he is kept in a poorly lit cell of 6 by 9 feet, with only a concrete slab to sleep on, and no integral sanitation. The Committee considers that the treatment described by the author is in violation of the State party's obligation under article 10, paragraph 1, of the Covenant, to treat prisoners with humanity and with respect for the inherent dignity of the human person.

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 articles 7 and 10, paragraph 1, of the Covenant.

10.       Pursuant to article 2, paragraph 3 (a), of the Covenant, the State party is under the obligation to provide the author with an effective remedy including compensation. The Committee urges the State party to take effective measures to carry out an official investigation into the beating by wardens with a view to identify the perpetrators and punish them accordingly, and to ensure that similar violations do not occur in the future.

11.       On becoming a State party to the Optional Protocol, Jamaica recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not. This case was submitted for consideration before Jamaica's denunciation of the Optional Protocol became effective on 23 January 1998; in accordance with article 12(2) of the Optional Protocol it continues to be subject to the application of the Optional Protocol. Pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals with its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established. The Committee wishes to receive from the State party, within ninety days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

          Q. Communication No. 662/1995, Lumley v. Jamaica

              (Views adopted on 31 March 1999, sixty-fifth session)

Submitted by:                                               Peter Lumley

Victim:                                             The author

State party:                                       Jamaica

Date of communication:                   24 August 1993

Prior decision:                                  Special Rapporteur's rule 91 decision, transmitted to the State party on 14 November 1995

Date of decision on

admissibility:                                   31 March 1999

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

            Meeting on 31 March 1999,

            Having concluded its consideration of communication No. 662/1995 submitted to the Human Rights Committee by Mr. Peter Lumley under the Optional Protocol to the International Covenant on Civil and Political Rights,

            Having taken into account all written information made available to it by the author of the communication and the State party,

            Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.         The author of the communication is Peter Lumley, a Jamaican citizen currently incarcerated at the South Camp Rehabilitation Centre, Jamaica. He claims to be the victim of violations by Jamaica of articles 2, paragraph 1; 14, paragraphs 3 (d) and (e), and 5, of the International Covenant on Civil and Political Rights. He is not represented by counsel.

Facts as submitted by the author

2.1       On 16 September 1987, the Kingston Circuit Court convicted the author of robbery and assault and sentenced him to 15 years for the robbery, and 9 years for the assault, to run concurrently. An application for leave to appeal filed on his behalf was dismissed by the Court of Appeal of Jamaica on 28 November 1988. The author has not filed a Petition for special leave to appeal to the Judicial Committee of the Privy Council.

2.2       The author provides a few details of his trial "from memory", as he has been unable to secure the trial transcripts despite repeated attempts. The author states that he was arrested on 11 July 1986 and held for several nights in detention without being informed of any charges. He was identified by one of two witnesses in a line-up. At the preliminary hearing which followed in October 1986 at the Half Way Tree Magistrate's Court, the witness and the alleged victim of the crime provided evidence which was later modified at trial. The author states that at the preliminary hearing it was said that he entered a "shut down" house in which he found a woman, whom he grabbed around the stomach from behind and allegedly held for "two or three minutes". She, meanwhile, was attempting to assist a female friend who lay unconscious on the floor. At trial evidence was given that the door of the house was "open", and that rather than the friend being on the floor, she was outside the house, and was called in. The author states that the victim of the assault testified that she was stabbed several times.

2.3       The author was represented at the preliminary hearing by paid counsel, and at trial by counsel's "girlfriend". The author states that he was charged with wounding with intent, aggravated robbery, and assault. He was convicted on the lesser charges of robbery and assault. He states that he is innocent and knows nothing of the incident.

2.4       On 28 November 1988, the author learned that an appeal filed on his behalf was that day refused. He states that he was not aware of who represented him on appeal, as he had written to his former counsel who had not responded, and to the Jamaica Council for Human Rights. The author wrote to the Parliamentary Ombudsman in Kingston on 10 December 1988 and received a reply on 26 January 1989, in which he was informed of the means of application for leave to appeal to the Privy Council.

2.5       Between 30 April 1988 to 29 June 1992, the author exchanged several communications with the Jamaica Council for Human Rights, which on his behalf requested the trial transcript from the court in order to determine how best to advise him. He further claims that he himself made numerous requests for the trial transcript. The author states that the last communication he received from the Council was on 29 June 1992, in which the Council stated that it been advised by the Court that the transcript was available. The author has since heard nothing further either from the Court or the Council.

The complaint

3.1       The author submits that he is the victim of a violation of article 14, paragraphs 3 (d) and (e), and 5, since as he was not aware that the Court of Appeal was going to examine his petition for leave to appeal and as he was not informed of who was representing him on appeal, he was unable to prepare his defence. He also contends that he was not given an opportunity to examine or have examined the witnesses against him.

3.2       The author additionally submits that he is the victim of a violation of article 2, paragraph 1 of the Covenant in connection with article 2 of the Optional Protocol because Jamaica thwarted his attempts to obtain legal assistance to file a Petition for special leave to appeal to the Judicial Committee of the Privy Council by unreasonably delaying the provision of a copy of his trial transcript despite numerous requests. He contends that Jamaica has effectively deprived him of the possibility of submitting a communication to the Human Rights Committee in accordance with article 2 of the Optional Protocol, as without access to the trial transcript it is impossible for the author's legal representatives to ascertain whether the criminal proceedings concerning the author were carried out in accordance with article 14 and other provisions of the Covenant.

3.3       The author submits that he has exhausted all domestic remedies. It is submitted that following many years of attempting to obtain the trial transcripts, and to obtain legal representation to file a Petition for special leave to appeal, the Government's refusal constitutes a "prolonged delay" under article 5, paragraph 2 (b) of the Optional Protocol.

3.4       It is stated that the case has not been submitted to another procedure of international investigation or settlement.

State party's observations and author's comments

4.1       By submission of 9 January 1996, the State party challenges the admissibility of the communication for non-exhaustion of domestic remedies, since the author has not filed an application for leave to appeal to the Judicial Committee of the Privy Council. The State party, however, also addresses the merits of the communication in order to expedite its examination.

4.2       The State party notes that the author's allegations are vague and that this makes it difficult for the State party to respond. It assumes that the claims under article 14 (3) (d) (e) and (5) relate to the circumstances of the filing of the author's appeal and denies that any violation occurred. According to the State party, the Court of Appeal sends out notices to persons wishing to appeal, to inform them of their attorney and the date of the appeal. The State party promises to inform the Committee of the dates of the notices sent to the author. However, no further information has been received.

5.1       In his comments, the author reiterates that he has never received a copy of the trial transcript, although the Jamaica Council for Human Rights received it some years ago.

5.2       He contests the State party's argument that he has not exhausted all available domestic remedies, since he is not in a position to file an application to the Judicial Committee of the Privy Council.

5.3       With regard to his claims, he states that there is no proof that he was represented on appeal, and that since he himself was absent witnesses could not be examined. The author encloses copies of all correspondence received from the Court of Appeal. From the correspondence, it appears that the author's application for leave to appeal as well as for permission to be present at the hearing of the appeal was filed on 23 November 1987, on grounds of unfair trial, insufficient evidence and improper directions. No application was made to have witnesses heard at the hearing of the appeal, according to the author unjustly so. The application was rejected by a single judge of the Court of Appeal on 14 November 1988, for reasons that the trial judge dealt fairly and adequately with the issue of identification and that the jury had evidence which if they accepted it could result in a verdict of guilty. It further appears that the full Court of Appeal confirmed the single judge's decision, on 28 November 1988.

Issues and proceedings before the Committee

6.1       Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

6.2       The Committee notes the State party's argument that the communication is inadmissible for non-exhaustion of domestic remedies. The Committee observes, however, that no legal aid was available to the author to petition the Judicial Committee of the Privy Council, and that in the circumstances no further remedies were available to him. The Committee considers therefore that no obstacles exist to the admissibility of the communication and, in order to expedite the examination of the communication, proceeds without further delay to a consideration of the merits of the communication.

7.1       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.

7.2       With regard to the author's complaint that he had no opportunity to examine witnesses on appeal, the Committee notes from the documents of the Court of Appeal that in the author's application for leave to appeal the question "Do you desire to apply for leave to call any witnesses on your appeal?" has been expressly answered by "No". The Committee considers therefore that the facts before it do not show a violation of article 14, paragraph 3 (e).

7.3 It further appears from the documents that leave to appeal was refused by a single judge whose decision was confirmed by the Court of Appeal. The judge refused leave of appeal only after a review of the evidence presented during the trial and after an evaluation of the judge's instructions to the jury. While on the basis of article 14, paragraph 5, every convicted person has the right to his conviction and sentence being reviewed by a higher tribunal according to law, a system not allowing for automatic right to appeal may still be in conformity with article 14, paragraph 5, as long as the examination of an application for leave to appeal entails a full review, that is, both on the basis of the evidence and of the law, of the conviction and sentence and as long as the procedure allows for due consideration of the nature of the case. Thus, in the circumstances, the Committee finds that no violation of article 14, paragraph 5 occurred in this respect.

7.4 With regard to the author's complaint that he was not present at the hearing of his application for leave to appeal and that he does not know who represented him on appeal, the Committee notes that the State party has submitted that in general the Court of Appeal sends notices to all appellants informing them of the date of the hearing and of the name of their representative. In the instant case, however, the State party has failed to provide any specific information as to whether and when the author was so informed. In the circumstances, it is unclear whether the author was at all represented on appeal, and the Committee therefore is of the opinion that the facts before it disclose a violation of article 14, paragraph 3 (d) juncto paragraph 5.

7.5       With regard to the availability of the trial transcript, the Committee recalls that under article 14, paragraph 5 of the Covenant, the State party should provide the convicted person with access to the judgements and documents necessary to enjoy the effective exercise of the right to appeal. In the present case, since the transcript was not made available to the author the Committee finds that the facts before it disclose a violation of article 14, paragraph 5.

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 reveal violations of article 14, paragraphs 3 (d) and 5 of the Covenant.

9.         Under article 2, paragraph 3 (a), of the Covenant, the State party is under the obligation to provide Mr. Lumley with an effective remedy, including release. The State party is under an obligation to take measures to prevent similar violations in the future.

10.       On becoming a State party to the Optional Protocol, Jamaica recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not. This case was submitted for consideration before Jamaica's denunciation of the Optional Protocol became effective on 23 January 1998; in accordance with article 12 (2) of the Optional Protocol it is subject to the continued application of the Optional Protocol. Pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established. The Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

APPENDIX

Individual opinion by Nisuke Ando and Maxwell Yalden

(partly dissenting)

             We agree with all the findings of the Committee in this case except one: the issue of availability of the trial transcript to the author.

            The author learned that an appeal on his behalf had been refused on 28 November 1988, although he was not aware of who had represented him on appeal. (See 2.4.) However, the Committee notes that in the author's application for leave to appeal the question "Do you desire to apply for leave to call any witnesses on your appeal?" has been expressly answered by "No". (7.2) In addition, the Committee has looked into the appeal proceedings and finds that no violation of article 14, paragraph 5, occurred. (7.3) However, since the trial transcript, which was necessary for the exercise of the author's right to appeal further to the Privy Council, was not made available directly to him, the Committee finds a violation of article 14, paragraph 5. (7.5)

            Notwithstanding this finding of the Committee, we conclude that the counsel who represented the author at the appeal was very likely to be in possession of the trial transcript because, without it, he could not have pursued the appeal proceedings. Moreover, between 30 April 1988 and 29 June 1992, the author also exchanged several communications with the Jamaican Council for Human Rights, which was in possession of the trial transcript (2.5, footnote 1), but he apparently heard nothing from the Council on this matter.

            It is regrettable that the State party has failed to provide the Committee with any specific information as to whether and when the author was informed by the Court of Appeal about the date of the hearing and the name of his representative (counsel). (7.4) Nevertheless, it is evident that the appeal counsel as well as the Jamaican Council for Human Rights was provided with the trial transcript and that either or both of them could have made it available to the author. In our opinion, the Committee should take this probability into account before categorically holding the State party responsible for a failure to make available to the author a copy of the trial transcript.

(Signed) Nisuke Ando                                                                                                  (Signed) Maxwell Yalden

[Done in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

        R. Communication No. 663/1995, Morrison v. Jamaica

(Views adopted on 3 November 1998, sixty-fourth session)

Submitted by:                                   McCordie Morrison

(represented by Macfarlanes, a law firm in London)

Alleged victim:                                The author

State party:                                       Jamaica

Date of communication:                   25 November 1994 (initial submission)

Date of decision on

admissibility:                                   3 November 1998

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

            Meeting on 3 November 1998,

            Having concluded its consideration of communication No. 663/1995 submitted to the Human Rights Committee by Mr. McCordie Morrison, under the Optional Protocol to the International Covenant on Civil and Political Rights,

            Having taken into account all written information made available to it by the 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 McCordie Morrison, a Jamaican citizen, at the time of the submission of the communication awaiting execution at St. Catherine District Prison, Jamaica. The author claims to be the victim of a violation by Jamaica of articles 6, paragraph 2; 7; 9, paragraphs 2 and 3; 10, paragraphs 1 and 2; and 14, paragraphs 1, and 3 (b) and (c) and 5, of the International Covenant on Civil and Political Rights. He is represented by Macfarlanes, a law firm in London. The author's death sentence was commuted to life imprisonment, on 16 May 1995.

Facts as presented by the author

2.1       The author was arrested on 29 April 1984 and charged on 7 May 1984 with having murdered one Rudolph Foster on 6 March 1984. On 6 March 1985, the author and his co-accused, Tony Jones, were convicted of murder and sentenced to death by the St. Elizabeth Circuit Court, Jamaica. The Court of Appeal of Jamaica refused the author's application for leave to appeal on 6 July 1987. His application for special leave to appeal to the Judicial Committee of the Privy Council was dismissed on 23 July 1991. With this, it is submitted, all available domestic remedies have been exhausted.

2.2       The prosecution's case was mainly based on the testimony of one Canute Thompson, who gave evidence that in the late evening of 6 March 1984 he had seen three men attack the deceased. He testified that he heard one of the attackers say to the deceased "Stand up, or else a kill you blood clat", and that he had seen one of them firing at Mr. Foster, who was running towards the witness. Furthermore, the witness testified that a bright street light had permitted him to recognize the author from a distance of one chain and three quarters. Mr. Thompson indicated that he had known the author for roughly 16 or 17 years, but that he had last seen him a year before. The only other evidence against the author was a comment he made upon his arrest: "how come ah me alone you arrest?". The prosecution based the case against the author on "common design".

2.3       Other prosecution evidence included that of a forensic expert who described the injuries he witnessed on the deceased and the removal of the plastic and fibre wadding from the wound in the back. A ballistics expert gave evidence that the fatal shot had been fired from a range of within 4 yards of the deceased's back.

2.4       On trial, the defence challenged the credibility of the testimony of Mr. Thompson, on the ground that he had held a grudge against the author's co-accused, Tony Jones. The reason for the hostility had been a dispute over a political issue which had resulted in Thompson, Jones and the author having a fight. The author claimed that the consequence of the fight had been that Thompson had informed the foreman at the work site where they all worked, and that he and Jones had subsequently been dismissed from their employment. Counsel further indicates that the author made an unsworn statement from the dock, denying any knowledge of the crime.

The complaint

3.1       The author alleges a violation of article 9, paragraphs 2 and 3, of the Covenant, on the ground that he was arrested on 29 April 1984 without having been informed of the reasons for his arrest, and that it was only between 30 January and 13 February 1985, during the preliminary examination, that he became aware that he was charged with murder. It is submitted that, even if he was cautioned on 7 May 1984, as stated by a police officer at trial, that was still more than a week after having been taken in custody. Counsel adds that the author spent more than 10 months in police custody before his trial.

3.2       As the author is indigent, the trial judge assigned a legal aid lawyer to him. According to the author, he received inadequate legal representation. In this respect, he claims that prior to the start of his trial, he had only one brief interview of 10 minutes with his attorney, approximately 7 weeks after his arrest; no written statement was taken from the author. It is unclear if any subsequent meetings took place, but the author maintains that he did not have enough time to discuss the case with his lawyer. Counsel notes that the legal aid lawyer was not present during the preliminary hearing and that the author was represented by his co-accused's lawyer. Counsel submits that the author did not have adequate time to prepare his defence and to communicate with counsel of his own choosing, in violation of article 14, paragraph 3 (b), of the Covenant.

3.3       The author further claims a violation of article 10, paragraphs 1 and 2, of the Covenant, on the grounds that after his arrest he was not permitted to speak to any member of his family for three weeks and that he was badly beaten by police officers in police custody. It is also claimed that during his detention in police custody between 29 April 1984 and the date of the trial, the author was not segregated from convicted prisoners, nor was he subject to separate treatment, as would have been appropriate, given his status as an unconvicted person.

3.4 Counsel claims that the author has been a victim of a violation of article 14, paragraph 1. In this respect, it is submitted that the trial judge violated his obligation of impartiality by the method in which he dealt with the evidence of a possible grudge held by the prosecution's main witness. He alleges that the judge misdirected the jury in that he told them that it had not been suggested to Mr. Thompson in cross-examination that he bore malice towards the author. Counsel also submits that the judge failed to direct the jury properly on the dangers of convicting on identification evidence alone, especially in the case of weaknesses in the quality of the opportunity of observing the assailant and in the absence of corroboration or other support for the identification. Counsel indicates that the identification occurred at night under insufficient lighting conditions, that Mr. Thompson had only a limited opportunity to obtain a view of the assailant and that the author was not placed on an identification parade.

3.5       Counsel further submits that the trial judge should have discharged the jury, which had initially been empanelled, since during the course of the trial, one juror was seen talking to a member of the deceased's family. Counsel adds that the trial judge questioned this juror in the presence of the entire jury; the juror denied that a conversation had taken place.

3.6       The author was convicted on 6 March 1985; his appeal was heard and dismissed on 6 July 1987. Counsel submits that he has had problems securing a copy of the trial transcript in the author's case, and moreover, that the written judgement of the Court of Appeal was not received until 11 July 1990. It is submitted that the delay of 28 months between trial and appeal of conviction and the delay in receiving the Court of Appeal's judgement and the trial transcript amount to a violation of article 14, paragraphs 3 (c) and 5, of the Covenant. Moreover, it is submitted that the author's representative on appeal did not advance any argument on his behalf.

3.7       The author claims to be a victim of a violation of article 7 of the Covenant, since he was detained on death row for over 9 1/2 years. Counsel argues that the length of the detention, in which the author lived under appalling conditions in the death row section of St. Catherine District Prison, amounts to cruel, inhuman and degrading treatment within the meaning of article 7. In support of his argument, counsel refers to a recent judgement of the Judicial Committee of the Privy Council, to a Zimbabwe Supreme Court judgement as well as to a judgement of the European Court of Human Rights.

3.8       Moreover, it is submitted that the author was ill-treated while in prison. Thus, on 4 May 1993, police officers and warders searched the prison, destroying much of the prisoners legal documents and physically assaulting some of them. As a result, the author and several other prisoners began a hunger strike which lasted three days, until a representative of the Jamaica Council for Human Rights was allowed to visit them. The author further claims that in 1992 he and other prisoners had found large numbers of their letters dumped in an old abandoned cell. In contrast to these allegations that have not been specified, as to which extent they relate to the author personally, counsel adds that the author has developed synovitis, which causes swelling of the joints, whilst in prison; although he so informed the Ombudsman on 10 November 1993, "no treatment" has been administered. Counsel concludes that since domestic remedies, and in particular the internal prison redress process and the complaints procedure of the Office of the Parliamentary Ombudsman, are neither available, nor effective, the requirements of article 5, paragraph 2 (b), of the Optional Protocol have been met.

3.9       Counsel submits that article 6, paragraph 2, of the Covenant, has been violated because a sentence of death was passed without the requirements of a fair trial having been met.

3.10 Finally counsel contends that, in practice, constitutional remedies are not available to the author because he is indigent and Jamaica does not make legal aid available for constitutional motions. Reference is made to the judicial precedents of the Judicial Committee of the Privy Council, and to the Human Rights Committee's jurisprudence. Counsel submits that all available domestic remedies have been exhausted.

State party's submission and counsel's comments

4.1       In its observations, dated 15 January 1996, the State party rejects the author's claim that the length of time he spent on death row constitutes cruel and inhuman treatment.

4.2       With regard to the author's allegation that he was not allowed to speak to his family for three weeks after having been arrested, the State party notes that there is no evidence to support this allegation and denies that this occurred. With regard to his complaint that he was not kept segregated from convicted prisoners during his pre-trial detention, the State party submits that the author has failed to submit detailed information in this respect, such as his place of detention. It states that in general convicted prisoners are not held in exactly the same circumstances as not convicted persons.

4.3       The State party has noted the author's complaint about lack of medical attention for his synovitis and promises to investigate and inform the Committee accordingly.

4.4       As to the author's complaint that he was represented by his co-accused's counsel, not by his own, the State party submits that this is no breach of the Covenant since prejudice does not necessarily arise.

4.5       With regard to the author's claims under article 14, paragraphs 3 (c) and 5, the State party notes that the author's appeal was dismissed two years and four months after his conviction, and that the written judgement by the Court of Appeal was issued eighteen months later, on 23 March 1989. The State party is not aware of any delay in producing the trial transcript. According to the State party, since the author had his conviction and sentence reviewed by the Court of Appeal there has been no breach of article 14, paragraph 5. The State party is also of the opinion that the period between the conviction and appeal does not constitute undue delay. It accepts that the delay in producing the written judgement was excessive, but does not accept that it constitutes a breach of the Covenant, since it did not prejudice the author.

4.6       With regard to the author's complaint about the judge's directions to the jury, the State party refers to the Committee's jurisprudence that it will not review the judge's instructions unless it is clear that they were manifestly arbitrary or amounted to a denial of justice. According to the State party, none of these exceptions apply in the present case, and the matter thus falls outside the Committee's jurisdiction.

5.1       In his comments on the State party's submission, counsel opposes the State party's assessment that prolonged judicial proceedings do not constitute cruel and inhuman treatment. He refers to alleged abuses which the author suffered and submits that these are to be taken into account when deciding the matter.

5.2       With regard to the allegation that the author was not allowed to speak to family members, counsel submits that evidence can be provided. He further states that the author was kept in Santa Cruz police station prior to his conviction. Counsel argues that it is not enough for the State party to simply deny the allegations without having undertaken any inquiries.

5.3       Counsel acknowledges that the author's representation by his co-accused's counsel at the preliminary hearing does not in itself constitute a breach of the Covenant, but submits that the author had not been fully interviewed by his co-accused's counsel and had no time to brief him properly. It is further stated that in preparation for the trial, the author was given his own counsel but that he did not have an opportunity to brief him adequately.

5.4       Counsel reiterates that the delay in issuing the written judgement of the Court of Appeal constitutes excessive delay in violation of article 14, paragraphs 3 (c) and 5.

5.5       With regard to his claim under article 14, paragraph 1, of the Covenant, counsel refers to the Committee's jurisprudence that a fair hearing necessarily entails that justice be rendered without undue delay. Counsel further argues that the judge's instructions were clearly arbitrary and amounted to a denial of justice.

Issues and proceedings before the Committee

6.1       Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

6.2       As to the author's claim that he was not allowed to see his relatives during the first three weeks of his detention, the Committee notes that the author has not shown what steps, if any, he has taken to bring these matters to the attention of the Jamaican authorities. In this respect, the requirements of article 5, paragraph 2 (b), of the Optional Protocol have not been met and this part of the communication is therefore inadmissible.

6.3       With regard to the author's claim that there was not sufficient time to prepare his defence, since his lawyer came to see him only once before the trial, the Committee notes that it would have been for the author's representative or the author himself to request an adjournment at the beginning of the trial, if he felt that he did not have enough time to prepare the defence. It appears from the trial transcript that no adjournment was sought during the trial. The Committee considers therefore that this claim is inadmissible under article 2 of the Optional Protocol.

6.4       With regard to the author's claim pertaining to the conduct of the trial and the judge's instructions to the jury, the Committee refers to its prior jurisprudence and reiterates that it is generally not for the Committee, but for the appellate courts of States parties, to evaluate the facts and the evidence in any given case. Similarly, it is not for the Committee to review specific instructions to the jury by the trial judge, unless it can be ascertained that the instructions to the jury were manifestly arbitrary or amounted to a denial of justice. The material before the Committee and the author's allegations do not show that the trial judge's instructions or the conduct of the trial suffered from such defects. Accordingly, this part of the communication is inadmissible as the author has failed to forward a claim within the meaning of article 2 of the Optional Protocol.

6.5       The Committee is further of the opinion that the author has failed to substantiate, for purposes of admissibility, his claim that he was denied a fair hearing because the judge failed to discharge the jury after one juror was seen talking with a member of the family of the deceased. The Committee notes that the judge did in fact examine this matter, and that the trial transcript does not contain any information which corroborates the author's claim. This claim is therefore inadmissible under article 2 of the Optional Protocol.

6.6       With regard to the author's claim under article 7 of the Covenant, on account of prolonged detention on death row, the Committee reaffirms its jurisprudence according to which detention on death row for prolonged periods of time does not constitute a violation of article 7 in the absence of some further compelling circumstances. The author has not substantiated any further specific circumstances, over and above the length of confinement on death row, and the claim is therefore inadmissible under article 2 of the Optional Protocol.

6.7       With regard to the author's claim that he found correspondence of prisoners in an abandoned cell, the Committee notes that the author has not specifically claimed that he found letters or documents written by or addressed to himself. This part of the communication is thus inadmissible under article 2 of the Optional Protocol, since the author has failed to forward a claim.

7.         The Committee considers the author's remaining claims admissible. It notes that both the State party and the author have commented on the merits of the claims. The Committee therefore proceeds without further delay to an examination of the merits of the admissible claims.

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 in article 5, paragraph 1, of the Optional Protocol.

8.2       The author has claimed that he was not informed of the reasons for his arrest, and that he only learnt about the charge against him when he first appeared before the judge at the preliminary hearing. From the trial transcript it appears that the police testified that he was cautioned on 7 May 1984, nine days after having been taken into custody. The State party has not addressed the author's claim. It is also undisputed that the author was not brought before a judge or judicial officer until some date after 7 May 1984. The Committee considers that a delay of nine days before informing a person who is arrested of the charges against him constitutes a violation of article 9, paragraph 2. The Committee further considers that the delay in bringing the author before a judge or judicial officer constitutes a violation of the requirement of article 9, paragraph 3.

8.3       As to the author's claims that he was beaten by the police and that he was not kept segregated from convicted prisoners during his pre-trial detention between 29 April 1984 and the trial, the Committee notes that the State party has not denied the allegation but has pointed to the author's duty to provide specific details, including the place of detention. Although such information was provided in counsel's submission of 21 February 1996, communicated to the State party on 19 March 1996, no additional comments have been received from the State party. In the circumstances, due weight must be given to the author's allegations. The Committee finds that the beatings constituted a violation of the author's rights under article 7 and that the lack of segregation from convicted prisoners violated article 10, paragraph 2 (a).

8.4       With regard to the author's claim that he did not have sufficient time to brief his co-accused's lawyer during the preliminary hearing, the Committee notes that the defence is not presented at the preliminary hearing. Consequently, the Committee finds that the facts before it do not constitute a violation of article 14, paragraph 3 (b) and (d).

8.5       The Committee notes that the author's appeal was heard on 6 July 1987, two years and four months after his conviction, that, according to the State party, the written judgement was issued on 23 March 1989, and that the author did not receive a copy until 11 July 1990, almost three years after the hearing of the appeal. The Committee refers to its prior jurisprudence and reaffirms that under article 14, paragraph 5, a convicted person is entitled to have, within reasonable time, access to written judgements, duly reasoned, for all instances of appeal in order to enjoy the effective exercise of the right to have conviction and sentence reviewed by a higher tribunal according to law and without undue delay. The Committee is of the opinion that the delay in hearing the appeal and in issuing a written judgement by the Court of Appeal and in providing the author with a copy, constitutes a violation of article 14, paragraphs 3 (c) and 5.

8.6       With regard to the author's claim that he was not effectively represented on appeal, the Committee notes that the author's legal representative on appeal conceded that there was no merit in the appeal. The Committee recalls its jurisprudence that under article 14, paragraph 3 (d), the court should ensure that the conduct of a case by a lawyer is not incompatible with the interests of justice. While it is not for the Committee to question counsel's professional judgement, the Committee considers that in a capital case, when counsel for the accused concedes that there is no merit in the appeal, the Court should ascertain whether counsel has consulted with the accused and informed him accordingly. If not, the Court must ensure that the accused is so informed and given an opportunity to engage other counsel. The Committee is of the opinion that in the instant case, the author should have been informed that legal aid counsel was not going to argue any grounds in support of the appeal, so that he could have considered any remaining options open to him. The Committee concludes that there has been a violation of article 14, paragraph 3 (d).

8.7       The Committee considers 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 a violation of article 6 of the Covenant if no further appeal against the death sentence is possible. In Mr. Morrison's case, the final sentence of death was passed without having met the requirements of a fair trial as set out in article 14 of the Covenant. It must therefore be concluded that the right protected under article 6, paragraph 2, has also been violated.

8.8       The author has claimed a violation of article 10 of the Covenant, because he has not received any medical treatment for his synovitis. The State party has promised to investigate the claim about the lack of medical treatment. The Committee recalls that a State party is under an obligation to investigate seriously allegations of violations of the Covenant made under the Optional Protocol procedure. This entails forwarding the outcome of the investigations to the Committee, in detail and without undue delay. The Committee finds that in spite of its promise of 19 January 1996 to investigate the claim of lack of medical treatment, the State party has failed to provide any additional information. Consequently, due weight must be given to the author's allegation that he was denied medical treatment, and the Committee finds that the lack of medical treatment to the author constitutes a violation of article 10 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 articles 7, 9, paragraphs 2 and 3, 10, paragraphs 1 and 2 (a), 14, paragraphs 3 (c) (d) and 5, and consequently article 6, paragraph 2, of the Covenant.

10.       Under article 2, paragraph 3 (a), of the Covenant, the State party is under the obligation to provide Mr. McCordie Morrison with an effective remedy, including release and compensation. The State party is under an obligation to take measures to prevent similar violations in the future.

11.       On becoming a State party to the Optional Protocol, Jamaica recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not. This case was submitted for consideration before Jamaica's denunciation of the Optional Protocol became effective on 23 January 1998; in accordance with article 12 (2) of the Optional Protocol it is subject to the continued application of the Optional Protocol. Pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established. The Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

            S. Communication No. 665/1995, Brown and Parish v. Jamaica

                (Views adopted on 29 July 1999, sixty-sixth session)

Submitted by:                                               Owen Brown and Burchell Parish

(represented by Ms. Natalia Schiffrin of Interights in London)

Alleged victim:                                The authors

State party:                                       Jamaica

Date of communication:                   27 February 1995

Date of decision on

admissibility:                                   23 October 1998

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

            Meeting on 29 July 1999,

            Having concluded its consideration of communication No. 665/1995 submitted to the Human Rights Committee by Messrs. Owen Brown and Burchell Parish under the Optional Protocol to the International Covenant on Civil and Political Rights,

            Having taken into account all written information made available to it by the author of the communication and the State party,

            Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.         The authors of the communication are Owen Brown and Burchell Parish, Jamaican citizens, at the time of submission awaiting execution at St. Catherine District Prison, Jamaica. They both claim to be victims of violations by Jamaica of article 14, paragraphs 1, (3) (b), 3(c) and 3(d), and, consequently, article 6, paragraph 2, of the Covenant. They are represented by Ms. Natalia Schiffrin of Interights in London. On 16 May 1995, their sentences were commuted to life imprisonment.

The facts as submitted by the authors

2.1       On 1 May 1985, the authors were convicted for the murder of Angela Simmonds on 1 October 1982, and sentenced to death. On 25 September 1987, the Court of Appeal dismissed their appeal, which had been based on lack of evidence to sustain a conviction and improper instructions by the judge to the jury. However, one of the judges, JA Rowe, had grave doubts as to the decision. He subsequently set out his observations in a letter dated 17 July 1989 sent to the authors' counsel who was preparing a petition for special leave to appeal to the Privy Council. Special leave to appeal to the Privy Council was refused in an oral judgment handed down by the Privy Council on 16 December 1991.

2.2       At trial, the case for the prosecution, which relied upon the evidence of six witnesses, was that the two accused were among three or four men who came to Regent Street in Kingston where the deceased lived, each of them allegedly armed with a gun, and that seven shots were fired down the centre of the street from west to east, fatally wounding Angela Simmonds and also wounding her brother Hamilton Simmonds.

2.3       Owen Brown gave sworn evidence to present an alibi. He said he was at home with his "babymother" that night. He denied the allegations made as to his complicity in the crime, and stated that he had turned himself in, on 4 October 1982, only after he had learned that the police was looking for him. Burchell Parish made an unsworn statement. He also set up an alibi, saying he had spent that night at his girlfriend's house. No witnesses were called to testify on the authors' behalf.

The complaint

3.1       The authors claim that their right to adequate and effective legal assistance was denied, in violation of article 14, paragraph 3 (b) and 3 (d). Owen Brown recalls that he only saw his (legal aid) lawyers for 5 or 10 minutes when he attended court for the trial date to be set. Subsequently he saw them for a further half hour and felt that the meeting was of very poor quality. He further states that he did not see his appeal lawyer till after his appeal hearing because he did not realise who was to represent him until his appeal was about to be heard. Similarly, Burchell Parish states that he did not see his lawyer at the appeal stage and only "heard" who he was represented by. He also complains that he has not seen or heard from his trial attorney since the day he was sentenced to death.

3.2       The authors further claim that they were not tried without undue delay. They were arrested on or about 4 October 1982. The trial was not held until May 1985, a pre-trial delay of some two years and seven months. The decision of the Court of Appeal was not given until September 1987, i. e. after an additional delay of some two years and four months. It is argued that this amounts to a violation of article 14, paragraph 3 (c).

3.3       The authors further claim that the trial process as a whole was not conducted in a fair and impartial manner, in violation of article 14, paragraph (1). They argue that the trial judge refused to provide the jury with an alternate instruction of manslaughter, though the evidence could clearly support such a verdict. Given the evidence that the bullet ricocheted more than once before injuring the victim, the absence of a post-mortem examination or medical evidence to assist the jury in determining exactly the cause of death, the lack of witnesses who could testify with any certainty as to the exact direction from which the shots were fired, the possibility that the shots were merely fired with the intent of scaring people and not of harming anyone, the fact that no one else was injured despite the number of people present and the number of shots fired, and the lack of evidence suggesting a motive for murder, it is submitted that the judge erred in failing to include a direction of manslaughter. In light of the fact that such a charge could have resulted in a sentence other than the death penalty, it is submitted that such a failure amounted to an arbitrary denial of justice.

3.4       The authors further alleged a violation of article 6, paragraph 2, because their sentence of death was imposed upon the conclusion of a trial in which the provisions of the Covenant have not been respected.

3.5       It is submitted that the same matter has not been submitted for examination under any other procedure of international investigation or settlement.

3.6       The authors contend that they have exhausted every possible domestic course of action which potentially might constitute a remedy. As regards the constitutional remedies which would be available to the authors under the Jamaican Constitution, it is submitted that in the absence of legal aid for filing a motion in the Jamaican Constitutional Court, recourse to the Jamaican Constitutional Court under section 25 of the Jamaican Constitution would not be a remedy available to the authors within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.

State party's observations and counsel's comments thereon

4.1       In its submission of 12 January 1996, the State party addresses the admissibility of the communication without explicitly contesting it. Instead, the State party denies that there is any merit in the authors' claims.

4.2       As to the alleged violation of article 14, paragraph 3 (b) and 3 (d), on the ground of lack of time with counsel to prepare an adequate defence, the State party submits that its duty is to provide persons with competent counsel to represent them, as was done here, and that it cannot be held responsible for the manner in which legal aid counsel conducts the case.

4.3       With regard to the alleged violation of article 14, paragraph 3 (c), the State party notes that a preliminary hearing was held during the period of two years and seven months which lapsed from the authors' arrest until their trial, and it submits that neither this period nor the period of two years and four months which lapsed from their conviction to the date the appeal was decided can be considered as undue delay.

4.4       With respect to the alleged violation of the right to a fair trial, as provided for in article 14 of the Covenant, the State party submits that the trial judge's directions to the jury on the issues of identification and reasonable doubt, are matters which fall outside the Committee's jurisdiction. It is submitted that the exceptions to this principle, i.e. that the instructions were arbitrary or amounted to a denial of justice or that the judge otherwise violated his obligation of impartiality, are not applicable in this case.

5.1       In her submission of 22 February 1996, counsel did not agree to a combined examination of admissibility and merits. Counsel submits that the State party's assertion that it is not responsible for the manner in which legal aid counsel conducts the case is wrong in law. It is argued that while it is well settled that the Committee will not second-guess the professional judgement of assigned counsel, the Committee has made it clear that the State can and will be held liable for the ineffective conduct of counsel. Reference is made to the jurisprudence of the Committee.

5.2       As to the claim of undue delay in breach of article 14, paragraph 3 (c), counsel points out that the authors were arrested three days after the murder took place, and, as such, that the State party was at the outset in possession of evidence of the alleged guilt of the applicants sufficient to warrant their arrest and detention. Counsel therefore asserts that without further explanation, the fact that a preliminary inquiry took place does not satisfactorily explain why a period of two years and seven months was required before trial. In this regard, counsel notes that the State party has not suggested that any specific problems arose during the preliminary inquiry that would warrant this delay. In conclusion, counsel submits, in light of the fact that all accused are to be to be considered innocent until proven guilty, that the delay of two years and seven months was excessive. Moreover, counsel notes that the aggregate of the periods of delay, from their conviction and sentencing in 1985 until the commutation of their sentences in 1995, resulted in 10 years on death row. Counsel submits that this delay is "undue" within the meaning of the Covenant.

5.3       As to the alleged violation of article 14, paragraph 1, counsel reiterates that the judge's refusal to leave the jury with the possibility of a manslaughter verdict amounts to a denial of justice which constitutes a violation of the Covenant.

Consideration of admissibility

6.1       During its 64th session, the Committee considered the admissibility of the communication.

6.2       With regard to the authors' allegation of a violation of article 14 on the ground of lack of instructions from the trial judge to the jury on the issues of manslaughter, the Committee reiterated that while article 14 guarantees the right to a fair trial, it is generally for the domestic courts to review the facts and evidence in a particular case. Similarly, it is for the appellate courts of States parties to review whether the judge's instructions to the jury and the conduct of the trial were in compliance with domestic law. The Committee can, when considering alleged breaches of article 14 in this regard, solely examine whether the judge's instructions to the jury were arbitrary or amounted to a denial of justice, or if the judge manifestly violated the obligation of impartiality. However, the trial transcripts made available to the Committee did not reveal that the authors' trial suffered from any such defects. Accordingly, this part of the communication was inadmissible as the authors had failed to forward a claim within the meaning of article 2 of the Optional Protocol.

6.3       The Human Rights Committee therefore decided that the communication was admissible in so far as it may raise issues under article 14, paragraphs 3 (b), 3 (c) and 3 (d), and consequently article 6, paragraph 2, and article 9, paragraph 3, of the Covenant.

Subsequent submissions from the parties

7.         In its Note of 14 April 1999, the State Party notifies the Committee that it has nothing to add to its previous submissions.

8.         In her letter of 6 May 1999, counsel likewise states that she has no further comments to forward on behalf of the authors.

Issues and proceedings before the Committee

9.1       The Human Rights Committee has considered the present communication in the light of all the information which has been made available to it, as required under article 5, paragraph 1, of the Optional Protocol.

9.2       With regard to the authors' claim that in violation of article 14, paragraphs 3 (b) and 3 (d), they were denied adequate and effective legal representation in relation to the trial, the Committee recalls that sufficient time must be granted to the accused and their counsel to prepare the defence, but that the State party cannot be held accountable for lack of preparation or alleged errors made by defense lawyers unless it has denied the authors and their counsel time to prepare the defense or it should have been manifest to the court that the lawyers' conduct was incompatible with the interests of justice. The Committee notes that the authors' legal aid counsel were assigned in due time for the trial. Furthermore, neither counsel nor the authors actively requested an adjournment, and there is nothing else in the trial transcript which can suggest that the State party denied the authors and their counsel opportunities to prepare for the trial or that it should have been manifest to the court that the defence team was inadequately prepared. In the circumstances, the Committee finds that the facts before it do not show a violation of article 14 on this ground. Consequently, there has been no violation of article 6, paragraph 2, either.

9.3       Similarly, with regard to the alleged violation of the same provisions on the ground that the authors did not meet with their new counsel before the hearing of the appeal, the Committee notes that the new counsel in fact argued grounds of appeal on the authors' behalf before the Court of Appeal and that there is nothing in the file which suggests that the State party denied the authors and their counsel time to prepare the appeal or that it should have been manifest to the court that the lawyer's conduct was incompatible with the interests of justice. The Committee concludes, therefore, that there has been no violation of article 14, paragraphs 3 (b) and 3 (d), and, consequently, article 6, paragraph 2, on this ground either.

9.4       The authors have claimed to be victims of a violation of article 14, paragraph 3 (c), both in regard of the trial and the appeal, as the trial was not held until 31 months after the arrest of the authors and the appeal was not decided until 28 months after the trial. With regard to the first period, the Committee found that it should be examined on the merits also under article 9, paragraph 3.

9.5       The Committee reiterates that all guarantees under article 14 of the Covenant should be strictly observed in any criminal procedure, and notes that the State party has merely argued that a preliminary hearing was held during the period which lapsed before the trial commenced and that neither this period nor the period before the appeal amounts to violations of the said provisions, without offering any further explanation. In the absence of any circumstances justifying these delays, the Committee finds that there has been a violation of articles 9, paragraph 3, and 14, paragraph 3 (c), with regard to the first period, and article 14, paragraph 3 (c), in conjunction with article 14, paragraph 5, with regard to the second period.

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 9, paragraph 3, article 14, paragraph 3 (c), and article 14, paragraph 3 (c), in conjunction with article 14, paragraph 5.

11.       In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide both Mr. Brown and Mr. Parish with an effective remedy, including compensation.

12.       On becoming a State party to the Optional Protocol, Jamaica recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not. This case was submitted for consideration before Jamaica's denunciation of the Optional Protocol became effective on 23 January 1998; in accordance with article 12 (2) of the Optional Protocol the communication is subject to the continued application of the Optional Protocol. 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 ninety days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

           T. Communication No. 668/1995, Smith and Stewart v. Jamaica

               (Views adopted on 8 April 1999, sixty-fifth session)

Submitted by:                                   Errol Smith and Oval Stewart

                                                         (represented by Ms. Natalia                                                                                              Schiffrin of Interights)

Alleged victim:                                The author

State party:                                       Jamaica

Date of communication:                   18 July 1995

Prior decision:                                  Special Rapporteur's rule 91 decision, transmitted to the State party on 15 November 1995

Date of decision on

admissibility:                                   8 April 1999

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

            Meeting on 8 April 1999,

            Having concluded its consideration of communication No. 668/1995 submitted to the Human Rights Committee by Messrs. Errol Smith and Oval 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 and the State party,

            Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.         The authors of the communication are Errol Smith and Oval Stewart, two Jamaican citizens currently detained at South Rehabilitation Centre, Kingston, Jamaica. They claim to be victims of violations by Jamaica of article 14, paragraphs 1, 3 (c), 3 (d), 3 (e) and 5, of the International Covenant on Civil and Political Rights. In addition, Oval Stewart claims to be a victim of violations of articles 7 and 10, paragraph 1. They are represented by Natalia Schiffrin of Interights.

The facts as submitted by the authors

2.1       The authors were convicted for murder and sentenced to death on 8 November 1982 by the Home Circuit Court of Jamaica. The authors' appeals were dismissed by the Jamaican Court of Criminal Appeal on 14 December 1984. On 17 July 1986, the Judicial Committee of the Privy Council dismissed their appeals. The authors have not sought a constitutional motion to the Jamaican Supreme Court because they were denied legal aid for such motions. On 15 February 1991, Oval Stewart's death sentence was commuted to life imprisonment. Following the enactment of Offences Against the Person (Amendment) Act 1992, Errol Smith's death sentence was also commuted.

2.2       The case for the prosecution was that on 30 June 1980 in the evening, two men, Owen Bailey and Rohan Francis, were moving a bed. A group of men were present nearby, including the two authors, and started to fire shots at Bailey and Francis, who immediately fled. Owen Bailey ran back into his house, where his father was, and where he was shot shortly after, while Francis hid at the back of the house. It is stated that Rohan Francis made a statement to the police on the night of the murder, but that the statement was subsequently lost and a second statement was only taken three months later. In this statement, Francis allegedly gave about six names, including those of Smith and Stewart.

2.3       At the trial, Rohan Francis identified the authors as members of the group which had approached him on the day of Owen Bailey's murder. Rohan Francis testified that Errol Smith had a gun and that he had heard him say that Owen Bailey had to be killed. Mr. Herman Bailey, the deceased's father, testified that he could not see the man with the gun who shot his son because he was standing behind a door, and could therefore not identify the authors.

The complaint

3.1       The authors claim that they are victims of a violation of article 14, paragraphs 1 and 3(e), of the Covenant on two grounds. Firstly, the authors state that the testimony of the prosecution's main witness, Rohan Francis, was inaudible and incomprehensible, and thus imply that the conviction was wrongful.

3.2       Secondly, the authors state that the prosecution failed to produce the first statement given by the prosecution's main witness, thereby prejudicing the authors' ability to impeach his testimony. It is stated that Mr. Francis testified that in his first statement given on the night of Owen Bailey's death, he did not give the police the names of who killed Owen Bailey, and that he thereafter did not identify the authors until three months later. The authors argue that the first statement was essential, as it would have thrown serious doubts on Mr. Francis' trial identification of, inter alia, Mr. Smith as the man carrying the gun. Furthermore, counsel argues that without knowing what Mr. Francis said to the police when events were freshest in his memory, it is impossible to say what other opportunities for cross-examination the authors were deprived of.

3.3       The authors claim to be victims of a violation of article 14, paragraph 3(d), on the ground of inadequate legal assistance. It is submitted that the authors' legal aid lawyers failed to subject the prosecution's case to meaningful adversial testing as they failed both to call any witnesses and to move for a mistrial or otherwise object to the inaudibility of the prosecution's main witness, Rohan Francis. In this regard, Mr. Stewart also claims to be a victim of a violation of article 14, paragraph 3(b), as he was not afforded adequate opportunity to prepare his defence together with his legal aid lawyer. It is submitted that their first meeting was on the day of the preliminary hearing, and that the lawyer subsequently only visited him once before the trial.

3.4       Mr. Smith claims to be a victim of article 14, paragraphs 3(d) and 5, as his lawyer failed to argue his case before the Court of Appeal. It is submitted that the lawyer failed to show up in court personally and that he merely asked the co-defendant's lawyer to convey to the court that he had "considered the notes of evidence and the summing up in so far as it affected Smith, and that having done so he found nothing on which he could properly base an application for leave to appeal". Reference is made to the jurisprudence of the Committee.

3.5       The authors also claim that they are victims of a violation of article 14, paragraphs 3(c) and 5, on the ground that, although they appealed to the Court of Appeal immediately after their conviction and sentence in November 1982, the Court of Appeal did not deliver its judgement in the matter for two full years, until December 1984. It is submitted that this delay was entirely attributable to the State party.

3.6       Mr. Stewart claims that he was subjected to inhuman and degrading conditions on death row at St. Catherine's District Prison in violation of articles 7 and 10, paragraph 1, of the Covenant. It is submitted that the sanitary conditions are dreadful, that the nutritional quality and quantity of the food is grossly inadequate and that the author was denied access to non-legal correspondence. It is further stated that the author was subjected to inadequate medical care, causing him to lose the sight in one of his eyes. The author has not sought a remedy through the Ombudsman because he does not believe that such a complaint would have any effect.

State party's submission and counsel's comments thereon

4.1       In its submission of 15 January 1996, the State party, "in order to expedite the examination of the communication", offers its comments also on the merits.

4.2       With regard to the alleged violations of article 14 on the ground of the alleged inaudibility of the main prosecution's witness and on the ground that the prosecution misplaced the first police statement of this witness, the State party submits that these matters relate to facts and evidence and that they therefore fall outside the scope of issues to be dealt with by the Committee.

4.3       With regard to the alleged violation of article 14, paragraph 3(d), on the ground of inadequate legal assistance for both authors before the Home Circuit Court and for Mr. Smith also before the Court of Appeal, the State party notes that these complaints concern the manner in which the legal aid lawyers chose to conduct their case, and submits that this is not a matter for which the State party can be held responsible. It is argued that the State party's obligation under the Covenant is to appoint competent legal aid counsel, but that the manner in which they conduct their case thereafter cannot be attributed to the State party.

4.4       With regard to the alleged violation of article 14, paragraphs 3(c) and 5, on the ground of delay between the conviction of the authors and the dismissal of their appeal, the State party states that it does not regard the period of two years which lapsed as undue delay, and submits that there has been no breach of the Covenant.

4.5       As to Mr. Stewart's claim that article 10, paragraph 1, was breached because he was denied medical attention and thereby lost vision in one eye, the State party states that this allegation will be investigated, and that the results of the investigation will be sent to the Committee as soon as they are ready.

5.1       In her submission of 1 March 1996, counsel states that the authors agree to a joint examination of the admissibility and the merits of the communication.

5.2       With regard to the authors' claim of a violation of article 14, paragraphs 1 and 3 (e), because the prosecution's main witness was inaudible, counsel notes the State party's assertion that this relates to the facts of the criminal case and that the claim therefore should not be dealt with by the Committee. Counsel argues that these allegations in the present case go to the very basis of the right to a fair trial and should be properly considered by the Committee. Counsel notes that the State party does not dispute that a vast amount of the testimony of the witness could not be understood by the jury, and submits that the facts amount to a violation of the fair trial guarantees of article 14.

5.3       In relation to the missing statement from the main prosecution witness, counsel reiterates that the witness failed to name the authors as those responsible for the murder in the statement, even though it was given on the same night. It is submitted that, in the view of the influence this missing statement could have had on the court proceedings, the failure to produce it constitutes a violation of article 14, paragraph 3(e). Reference is made to the jurisprudence of the Committee.

5.4       Counsel notes the State party's response to the alleged violations of article 14, paragraph 3(b) and (d), where it held that the manner in which legal aid counsel conduct their cases cannot be attributed to the State party. Counsel submits that this assertion is wrong in law and argues that while it is well settled that the Committee will not second-guess the professional judgement of assigned counsel, the Committee has made it clear that the State party can and will be held liable for the ineffective conduct of counsel. With regard to the present case, counsel submits that the complete lack of preparation and strategy and the total apathy on counsel's part in calling witnesses as well as in making objections creates a presumption of inequality of arms. Reference is made to the jurisprudence of the Committee.

5.5       Specifically to Mr. Smith's claim under these provisions, counsel reiterates that his lawyer failed to argue his case before the Court of Appeal, and submits that this decision taken by counsel brings this case in line with a number of cases where the Committee has held abandoned appeals to be violations of article 14, paragraph 3(d).

5.6       With regard to Mr. Stewart's claim under article 14, paragraph 3(b), that he only met with his lawyer once for a few minutes prior to the trial, counsel reiterates that this amounts to a violation of this provision. Reference is made to the jurisprudence of the Committee.

Issues and proceedings before the Committee

6.1       Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with article 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

6.2       The Committee notes that the State party in its submission, in order to expedite the examination, has addressed the merits of the communication. This enables the Committee to consider both the admissibility and merits of the case at this stage, pursuant to rule 94, paragraph 1, of the rules of procedure. However, pursuant to rule 94, paragraph 2, of the rules of procedure, the Committee shall not decide on the merits of a communication without having considered the applicability of any of the grounds of admissibility referred to in the Optional Protocol.

6.3       With regard to the alleged violation of article 14 on the ground of deficiencies in the testimony of the main prosecution witness, the Committee reiterates that while article 14 guarantees the right to a fair trial, it is generally for the domestic courts to review the facts and evidence in a particular case, as in this case was done both by the trial court and the Court of Appeal. The Committee can, when considering alleged breaches of article 14 in this regard, solely examine whether the conviction was arbitrary or amounted to a denial of justice. However, the material before the Committee and the author's allegations do not show that the courts' evaluation of the evidence suffered from any such defects. Accordingly, this part of the communication is inadmissible as the author has failed to forward a claim within the meaning of article 2 of the Optional Protocol.

6.4       The Committee declares the remaining claims admissible, and proceeds with the examination of the merits of all admissible claims, in the light of the information made available to it by the parties, as required by article 5, paragraph 1, of the Optional Protocol.

7.1       In regard to the alleged violation of article 14, paragraph 3(b), it transpires that the witness Rohan Francis conceded in his evidence that in his original police statement he had not named the alleged murderers of Mr. Bailey and that he was examined by the judge on this point. In the summing up to the jury, the judge made mention of this point too. In these circumstances, the Committee cannot find that the failure to produce to the defence Francis' original police statement, which was apparently mislaid and was not part of the prosecution's case, constituted a violation of article 14, paragraph 3(b).

7.2       The authors claim to be victims of a violation of article 14, paragraph 3(d), on the ground that their legal assistance before the Home Circuit Court was inadequate. The author Stewart also alleges a violation of article 14, paragraph 3(b), as he was not afforded sufficient time with his legal aid lawyer to prepare for his trial. With regard to the quality of defence, it is submitted that the legal aid lawyers failed to challenge the prosecution's case in an appropriate manner as they failed both to call any witnesses and to move for a mistrial or otherwise object to the inaudibility of the prosecution's main witness. In this context, the Committee reiterates its jurisprudence that where a capital sentence may be pronounced on the accused, it is axiomatic that sufficient time be granted to the accused and their counsel to prepare the defence, but that the State party cannot be held accountable for lack of preparation or alleged errors made by defence lawyers unless it has denied the author and his counsel time to prepare the defence or it should have been manifest to the court that the lawyers' conduct was incompatible with the interests of justice. The Committee notes that neither of the authors nor their counsel requested an adjournment and finds that there is nothing in the file which suggests that it should have been manifest to the court that the lawyers' conduct was incompatible with the interests of justice. In the circumstances, the Committee finds that the facts before it do not show a violation of article 14 on these grounds.

7.3       Mr. Smith has also claimed to be a victim of article 14, paragraphs 3 (d) and 5, on the ground that his lawyer failed to argue his case before the Court of Appeal, and instead asked the co-defendant's lawyer to convey to the court that he had found nothing on which he could base an application for leave to appeal. On the basis of this message, the Court of Appeal refused Mr. Smith's application without further consideration. The State party does not dispute these facts, but contends that it is not responsible for counsel's conduct of the case. The Committee recalls its jurisprudence that the right to representation under article 14, paragraph 3(d), entails that the court should ensure that the conduct of a case by a lawyer is not incompatible with the interests of justice. While it is not for the Committee to question counsel's professional judgment, 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 informed the accused. If not, the Court must ensure that the accused is so informed and given an opportunity to engage other counsel. In the present case, it does not appear that the Court of Appeal ascertained that the author was duly informed, and the Committee concludes that there has been a violation of article 14, paragraphs 3(d) and 5, on this ground.

7.4       The authors have claimed that the period of 25 months which lapsed from their conviction to the dismissal of their appeal in the Court of Appeal constitutes a violation of article 14, paragraphs 3(c) and 5. The Committee reiterates that all guarantees under article 14 of the Covenant should be strictly observed in any criminal procedure, particularly in capital cases, and notes that the State party has merely argued that such a period does not amount to a violation of the Covenant, without offering any explanation for the delay. In the absence of any circumstances justifying the delay, the Committee finds that there has been a violation of article 14, paragraph 3(c), in conjunction with paragraph 5.

7.5       As to Mr. Stewart's claim of a violation of articles 7 and 10, paragraph 1, on the ground of the conditions of detention, including lack of medical treatment, at St. Catherine's District Prison, the Committee notes that Mr. Stewart has made specific allegations. He states that the sanitary conditions of the prison are dreadful, that the quality and quantity of the food is grossly inadequate and that he has been denied access to non-legal mail. Furthermore, he states that he has been subjected to inadequate medical attention, which has caused the loss of his sight in one eye. The State party has not refuted these specific allegations, and has not, in spite of its explicit promise and the principle in article 4, paragraph 2, of the Optional Protocol, forwarded results of the investigation announced in 1996 into the author's allegations that he was denied medical attention. The Committee finds that these circumstances disclose a violation of articles 7 and 10, paragraph 1, of the Covenant.

8.         The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose violations of article 14, paragraphs 3(c), 3(d) and 5, of the International Covenant on Civil and Political Rights in the case of Mr. Smith, and articles 7, 10, paragraph 1, and 14, paragraph 3(c), in conjunction with paragraph 5, of the International Covenant on Civil and Political Rights in the case of Mr. Stewart.

9.         In accordance with article 2, paragraph 3(a), of the Covenant, the State party is under an obligation to provide Mr. Smith and Mr. Stewart with effective remedies, including compensation for both of them and the release of Mr. Smith.

10.       On becoming a State party to the Optional Protocol, Jamaica recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not. This case was submitted for consideration before Jamaica's denunciation of the Optional Protocol became effective on 23 January 1998; in accordance with article 12(2) of the Optional Protocol the communication is subject to the continued application of the Optional Protocol. 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 ninety days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

           U. Communication No. 680/1996, Gallimore v. Jamaica

               (Views adopted on 23 July 1999, sixty-sixth session)

Submitted by:                                     Lancy Gallimore

(represented by Mr. Anthony Poulton of Macfarlanes, a London law firm)

Alleged victim:                                   The author

State party:                                         Jamaica

Date of communication:                     29 April 1995

Prior decision:                                    Special Rapporteur's rule 91 decision, transmitted to the State party on 14 March 1996

Date of decision on

admissibility:                                      23 July 1999

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

            Meeting on 23 July 1999,

            Having concluded its consideration of communication No.680/1996 submitted to the Human Rights Committee on behalf of Lancy Gallimore, 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 Lancy Gallimore, a Jamaican citizen imprisoned at the General Penitentiary in Kingston. He claims to be a victim of violations by Jamaica of articles 7, 10, paragraph 1, 14, paragraphs 1, 3 (b) and 5, of the International Covenant on Civil and Political Rights. He is represented by Mr. Anthony Poulton of Macfarlanes, a London law firm. The author's offence has been reclassified as non-capital.

The facts as submitted by the author

2.1       The author was arrested on 8 May 1987 for the murder, of one Angela Bess, which took place on that day and was charged on 12 May 1987. On 18 November 1987, the author was found guilty as charged and sentenced to death by the Kingston Circuit Court. The Court of Appeal of Jamaica dismissed his appeal on 11 July 1988. A further application for special leave to appeal to the Judicial Committee of the Privy Council has not been filed, for reasons set out below.

2.2       Since his conviction on 18 November 1987 the author was held at St. Catherine's District Prison on death row. On 8 December 1992, the author's case was reviewed and classified by decision of a single judge of the Court of Appeal as non-capital murder pursuant to the Offences Against the Persons (Amendment) Act 1992. The author's sentence was therefore commuted to life imprisonment.

2.3       As to the issue of exhaustion of domestic remedies, counsel explains that Mr. Gallimore has not petitioned the Judicial Committee of the Privy Council for special leave to appeal against the judgment of the Court of Appeal, because the substance of his appeal does not come within the restrictive jurisdiction of the Privy Council, as it has established that it will not act as a Court of Criminal Appeal. Furthermore, London counsel reportedly advised that such a petition would have little prospect of success. Thus, it is submitted, in the author's case an appeal to the Judicial Committee of the Privy Council is neither an effective nor an available remedy.

2.4       In the same manner, the author did not apply to the Supreme (Constitutional) Court of Jamaica for redress, because it is considered that such a constitutional motion would inevitably fail in the light of the precedent set by the decisions of the Judicial Committee of the Privy Council in DPP v. Nasralla and Riley v. Attorney General of Jamaica, 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. It is stated that since the author alleges unfair treatment under the law and not that post constitutional laws are unconstitutional, the constitutional remedy is not available to him. It is further submitted that, even if it is considered that the author does have a constitutional remedy in theory, in practice it is not available to him because of his lack of funds and the unavailability of legal aid. In this connection, reference is made to the Committee's jurisprudence in relation to the communications of Raphael Henry (communication No. 230/1987) and Lynden Champagnie, Delroy Palmer and Oswald Chisholm (communication No. 445/1991).

2.5       The case for the prosecution was that, on 8 May 1987, at 9.30 p.m., Angela Bess, after talking with the author in the street, was killed by one stab with an ice-pick by the author.

2.6       The prosecution's case was mainly based on the evidence of one Phillip Robinson. He testified that, sitting in the front of a minibus, he witnessed the author with his back turned towards the road talking with the deceased near the bus station, when suddenly the author pulled something out from the vicinity of his waist and made a hostile motion towards her. He saw the author move off quickly, he got out of the bus, the woman fell into his arms and told him, that the man had stabbed her. The witness put her down on the ground and got back onto the bus which was driving in the same direction as that in which the author was attempting to escape. The author got on the bus, and when he got off, the witness followed him, and, pretending to be a police officer, challenged the author to stop. He searched the author's pockets and found an ice-pick. Having removed this, the witness took the author to the police station.

2.7       The body of Angela Bess, bearing a stab wound in the region of the heart, was found by the police at the place of the incident later in the evening, and identified on 15 May 1987 by Aneita Taylor, the mother of the deceased.

2.8       The author's defence was based on mistaken identity. The author made a sworn statement alleging that he was in a bar having drinks, after which, while he was waiting for a bus, the witness and another man came towards him, called him George Campbell and forced him at gun point to follow them first to the place of the incident and then to the police station. He stated that the deceased was entirely unknown to him.

2.9       The appeal of the author was based on the grounds of unfair trial and insufficient evidence to warrant a conviction. The author himself was not present at the appeal and was represented by a different legal aid lawyer than the one who had represented him at the trial. The author's appeal lawyer did not argue any grounds of appeal on his behalf, and stated that he could not find any arguable grounds in favour of the author.

The complaint

3.1       The author claims that he is a victim of a violation of article 10, paragraph 1, of the Covenant. In this connection, counsel states that, between 8 and 9 May 1987 while the author was in custody, he was twice beaten by the police with cable brake wire all over his body and police officers stood on his stomach. Counsel further states that the author has been badly beaten several times by prison warders with no cause when he was detained in St. Catherine District Prison on death row, and that as a result of one beating he was unable to use his right hand for 17 days. Counsel adds that, despite several complaints to the prison officers, the author has not been treated for the resulting injuries, nor has he been seen by a doctor.

3.2       It is further stated that the author wrote to the Parliamentary Ombudsman after he had been beaten up by police officers while in custody on 8 and 9 May 1987, but received no response. Reference is made to the Amnesty International Report of December 1993 in which it is stated that the Office of the Ombudsman does not have sufficient funding to be effective, and it is stated that the last report of the Ombudsman was dated December 1988. It is therefore submitted that the Office of the Parliamentary Ombudsman does not provide an effective domestic remedy in the circumstances.

3.3       As to his claim under article 14 of the Covenant, counsel refers to passages of the judge's summing-up to the jury. It is submitted that the trial judge failed to properly direct the jury, according to the legal rules required in identification cases as they are laid down in the decision R. v. Turnbull. In particular, it is said that the identification warning given to the jury by the judge was inadequate, and that the indication of the weakness in the evidence was unclear and unsatisfactory.

3.4       As to article 14, paragraph 3 (b), counsel states that the author did not have adequate time for the preparation of his defence and to communicate with counsel of his own choosing. In this connection, counsel points out that the legal aid lawyer in the first court hearing was assigned by the judge and was not chosen by the author. Counsel alleges that the author met with his attorney for the first time only four weeks after his arrest, that the interview lasted 10 minutes and no written statement was taken by the attorney. He points out that the author had only two subsequent meetings, after the Preliminary Hearing and immediately before the trial, which also lasted only ten minutes, and that this was not enough time to go through his case with his lawyer. No witnesses were called on the author's behalf.

3.5       Counsel further points out that, as regards his appeal, the author was assigned another legal aid lawyer, whom he did not meet prior to the appeal, and who failed to argue any grounds of appeal on the author's behalf. The author did not attend the appeal himself. It is stated that this constitutes at the same time a violation of article 14, paragraph 5, of the Covenant.

3.6       With respect to article 14, paragraph 5, of the Covenant, counsel further states that the author did not have access to the trial transcript and a duly reasoned summing up of the judge before the appeal. He argues that this effectively denied him the right to have his conviction reviewed by a higher tribunal. In this connection, reference is made to the Committee's jurisprudence in relation to the communications of Raphael Henry (communications No. 230/1987) and Leaford Smith (communication No. 282/1988), where the Committee held that in order to enjoy the effective use of his right to have conviction and sentence reviewed by a higher tribunal, the convicted person is entitled to have, within a reasonable time, access to written judgements, duly reasoned, for all incidents of appeal.

3.7       Counsel submits that, at the review of the author's classification, the non-parole period of his sentence was set at twenty years and stated to commence on the date of his classification as a non-capital offender, thereby failing to take into account the five years which he was held on death row at St. Catherine District Prison. In this connection it is submitted that the retrospective nature of Section 7 of the Offences Against the Persons (Amendment) Act 1992, which reclassifies prisoners already on death row, is contrary to both article 14 of the Covenant and the Jamaican Constitution. Counsel argues that under Section 7 of the Act the author was in fact convicted of a new offence, and should therefore have been afforded the rights of a full trial hearing. He was, however, not provided with any reasons for his classification as a non-capital offender or for the length of the sentence imposed on him, and was not given any opportunity to make any presentation concerning the classification by the single judge or to appeal against the sentence imposed on him by that judge.

3.8       Counsel states that if the non-parole period of the author's sentence does not take into account the five years he spent on death row, it would be contrary to article 7, of the Covenant since he was held for such a substantial period as a condemned man. It is therefore requested that the Committee provides an appropriate remedy in relation to such a violation which in this case should be a recommendation that his sentence be reduced to take account of the time which the author spent in prison prior to his reclassification.

State party's submission and counsel's comments thereon

4.1       In its submission of 21 June 1996, the State party states that it will respond to the merits despite considering that the communication should be declared in admissible for failure to exhaust domestic remedies since the author has not sought review of his case by the Privy Council.

4.2       With respect to the alleged violation of article 7 because the period of time which the author was required to serve, following the reclassification of his offence, did not take into account the five years spent on death row, the State party holds that the question of parole is dealt with in section 7 of the Offences Against the Persons (Amendment ) Act 1992. It provides that a judge may specify the time which a person has to serve before he is eligible for parole. Where no such period is specified, a minimum of 7 years must be served before a person can be eligible for parole. The Act does not specify the criteria which should be looked at in determining the period to be served. Rather the judge, in the exercise of his discretion, would look at all the relevant circumstances before making a recommendation. There is no requirement to take the period already served into account. Further unless it can be shown that, in exercising his discretion, the judge acted unreasonably or exceeded his authority in law, it cannot be argued that there was any breach of article 7.

4.3       With respect to the allegation of a breach of article 10 due to the ill-treatment the author received while on death row, the State party contends that it needs additional information as to the actual dates or approximate dates of the incident, the names of the warders and any other information available in respect of the incident in order to investigate it.

4.4       With regard to the violation of article 14, paragraph 3 (b), since the author was represented by a legal aid lawyer both on trial and on appeal not having adequate time to meet with them. The State party contends that it is its duty to provide competent legal aid counsel, the manner in which counsel chooses to represent his client and any failings therein cannot be attributed to the State party.

4.5       The State party rejects the allegation that there has been a breach of article 14, paragraph 5, because the author did not have access to his trial transcript and the duly reasoned summing up of the trial judge. The fact remains that legal aid counsel did represent the author before the Court of Appeal where his case was examined. Consequently, the State party rejects the view that any violation has occurred.

4.6       With respect to the purported breach of article 14, because of the retrospective nature of section 7 of the Offences Against the Persons (Amendment) Act 1992, in terms of the reclassification of offences, the State party notes that the author has alleged that this further constitutes a breach of the Jamaican Constitution. Having identified a constitutional breach it is incumbent upon the author to pursue a domestic remedy for that breach, before applying to the Committee. Consequently, this part of the communication should be declared inadmissible under article 5, paragraph 2 (b), of the Optional Protocol.

5.1       In his submission of 16 August 1996, counsel rejects the State party's affirmations that an appeal to the Privy Council is still open to the author. He points out that the author has not sought to have his case reviewed by the Judicial Committee of the Privy Council because the grounds on which the Privy Council will entertain an appeal from foreign countries in criminal matters are very limited. It has been established that it will rarely act as a court of criminal appeal as it limits appeals in criminal cases to those where in its opinion some matter of constitutional importance has arisen or where a substantial injustice has occurred. Given that the Privy Council's jurisdiction is therefore extremely narrow (and far more limited than the powers of the United Nations Human Rights Committee), the Applicant has not petitioned the Privy Council for special leave to appeal against judgement of the Court of Appeal of Jamaica as this is neither an available nor an effective remedy. In accordance with the advice given in writing by leading counsel, the author has not petitioned the Privy Council.

5.2       Counsel reiterates the original claim that a violation of article 7 of the Covenant has occurred as the time the author had already served on death row when he was reclassified under the Offences Against the Persons Amendment Act was not taken into account when establishing the non parole period he would have to serve. Counsel states that since the Act does not specify the criteria which should be looked at to determine the period to be served, it seems only reasonable that a judge would at least consider the period already served, when exercising his discretion.

5.3       With respect to the allegations of beatings by warders, counsel reiterates his claim and emphasizes that the State party has been provided with all the information available to him, which should be more than enough if there was a serious wish to investigate.

5.4       With regard to the allegation that the author did not have adequate representation due to the lack of time with defence counsel in order to prepare his defence, counsel reiterates that a breach of article 14, paragraph 3 (b), has occurred even if the State party refuses to accept responsibility for it.

5.5       Counsel accepts that the author's case was reviewed by the Court of Appeal but reiterates that the author did not have access to the trial transcript and duly reasoned summing up of the judge before the appeal on 11 July 1988, and consequently, there has been a violation article 14, paragraph 5, of the covenant.

Issues and proceedings before the Committee

6.1       Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

6.2       With respect to the author's claim that he was not properly represented by his legal aid counsel on trial, since he met with him only for a short time prior to the trial and failed to follow his instructions in visiting the scene of the crime and did not call a defence witness in violation of article 14, paragraph 3 (b) and (e), the Committee recalls its prior jurisprudence that it is not for the Committee to question counsel's professional judgement, unless it was clear or should have been manifest to the judge that the lawyer's behaviour was incompatible with the interests of justice. In the instant case, there is no reason to believe that counsel was not using other than his professional judgment. The Committee finds that in this respect, the author has no claim under article 2, of the Optional Protocol.

6.3       With regard to the author's allegations concerning irregularities in the court proceedings, improper instructions from the judge to the jury on the issue of interpretation of identification evidence, in particular that the identification warning given to the jury by the judge was inadequate and that the indication of the weakness in the evidence was unclear and unsatisfactory, the Committee reiterates that while article 14 guarantees the right to a fair trial, it is generally for the courts of States parties to the Covenant to review the facts and evidence in a particular case. Similarly, it is for the appellate courts of States parties and not for the Committee to review the judge's instructions to the jury or the conduct of the trial, unless it is clear that the judge's instructions to the jury were arbitrary or amounted to a denial of justice, or that the judge manifestly violated his obligation of impartiality. The author's allegations and the trial transcript made available to the Committee do not reveal that the conduct of Mr. Gallimore's trial suffered from such defects. In particular, it is not apparent that the judge's instructions on how to interpret identification evidence, were in violation of his obligation of impartiality. Accordingly, this part of the communication is inadmissible, as non substantiated, pursuant to article 2 of the Optional Protocol.

6.4       With respect to the requirement of exhaustion of domestic remedies, the Committee has noted the State party's contention that the author has failed to petition the Judicial Committee of the Privy Council for special leave to appeal. The author's failure to petition this body cannot, however, be attributed to him, as in order to petition the Judicial Committee, as a poor person, the petition must be accompanied by an affidavit in support of the petition as well as the certificate of counsel that the petitioner has reasonable grounds of appeal. The author has not petitioned the Privy Council on the advice he was given in writing by leading counsel. In this respect, the Committee wishes to recall its constant jurisprudence and finds, in the circumstances of this case, that the application to the Privy Council cannot be considered an effective remedy and does not constitute a remedy which must be exhausted by the author for the purposes of the Optional Protocol. The Committee therefore considers that it is not precluded by article 5, paragraph 2 (b), from considering the communication.

6.5 With regard to the State party's contention that the communication is inadmissible for failure to exhaust domestic remedies with respect to the possibility of filing a constitutional motion for an alleged breach of the Constitution in respect of Section 7 of the Offences Against the Persons, (Amendment) Act 1992, the Committee recalls its jurisprudence that for purposes of article 5, paragraph 2(b), of the Optional Protocol, domestic remedies must be both effective and available. It notes the State party's argument that a constitutional remedy was still open to the author, and observes that the Supreme Court of Jamaica has, 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. The Committee, however, recalls that the State party has indicated on several occasions that no legal aid was made available for constitutional motions. It considers that, in the absence of legal aid, a constitutional motion does not constitute an available remedy which needs to be exhausted for purposes of the Optional Protocol.

6.6       The Committee, declares the rest of the claims admissible and proceeds, without further delay, to an examination of the substance of these, in the light of all the information made available to it by the parties, as required by article 5, paragraph 1, of the Optional Protocol.

7.1       With respect to the author's claims of ill-treatment, the Committee notes that he has alleged beatings while in police custody, which the State party has failed to address altogether. Consequently, the Committee finds that due weight must be given to the allegations. With respect to the author's claim that he was beaten while in detention at St. Catherine District Prison and did not receive medical treatment for a hand injury, as a result of which he was unable to use his hand for 17 days, the Committee notes the State party's allegation that it required additional information as to the events. It also notes that Counsel has stated that the author raised the issue with the prison warders. In return the State party merely requests additional information and does not seem to have investigated the matter. It also notes that the letter from counsel informing the Committee of his inability to provide more information than that already submitted was transmitted to the State party in December 1996. In the absence of further information from the State party, the Committee considers that due weight must be given to the author's complaint and accordingly finds that the treatment he received at the hands of the authorities both while in police custody and later in detention are in violation of articles 7 and 10, paragraph 1, of the Covenant.

7.2       The author further claims that his rights under article 14, paragraph 1, were violated in the reclassification procedure in which the author's offense was classified as non-capital under Section 7 of the Offenses Against the Persons (Amendment) Act 1992 and the non-parole period was set to 15 years. It is submitted that the author was not provided with any reasons for the length of the non parole-period and was not given the opportunity either to make any contribution to the procedure or to appeal against the sentence imposed on him by the single judge. Even though a life sentence is prescribed by law for offenses reclassified as non-capital, the Committee notes that the judge when fixing the non-parole period exercises discretionary power conferred on him by the Amendment Act 1992 and makes a decision which is separate from the decision on pardon and forms an essential part of the determination of a criminal charge. The Committee notes that the State party has not contested that the author was not afforded the opportunity to make any submissions prior to the decision of the judge or the opportunity to seek review of that decision. In the circumstances, the Committee finds that article 14, paragraphs 1 and 3 (d) were violated.

7.3       With regard to the alleged violation of articles 7 and 10, paragraph 1, on the ground that the time the author spent on death row (5 years) and the non-parole period of 15 years set by the judge together amount to cruel and inhuman punishment, the Committee, recalls its constant jurisprudence that the period of time spent on death row does not per se constitute a violation of article 7. As to whether the combined effect of the five year on death row and the non-parole period of 15 years amounts to cruel and inhuman punishment, bearing in mind the nature of the offence, the Committee finds that there has been no violation of articles 7 and 10 in this regard.

7.4       With regard to counsel's claim that the author was not effectively represented on appeal, the Committee notes that the author's legal representative on appeal conceded that there was no merit in the appeal. The Committee recalls its jurisprudence that under article 14, paragraph 3(d), the court should ensure that the conduct of a case by a lawyer is not incompatible with the interest of justice. While it is not for the Committee to question counsel's professional judgement, the Committee considers that in any criminal proceedings and in particular in a capital case, when counsel for the accused concedes that there is no merit in the appeal, the Court should ascertain whether counsel has consulted with the accused and informed him accordingly. If not, the Court must ensure that the accused is so informed and given an opportunity to engage other counsel. The Committee is of the opinion that in the instant case, Mr. Gallimore should have been informed that his legal aid counsel was not going to argue any grounds in support of his appeal, so that he could have considered any remaining options open to him. The Committee concludes that there has been a violation of article 14, paragraph 5, in respect to the author's appeal.

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 violations of articles 7, 10, paragraph 1 and article 14, paragraph 5, of the Covenant.

9.         In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Mr. Gallimore with an effective remedy, including either reducing the non-parole period to the Amendment Act's minimum of seven years, or re-evaluating the non-parole period in a procedure that guarantees the enjoyment of the author's rights under article 14, or some other appropriate procedure. The State party is under an obligation to ensure that similar violations do not occur in the future.

10.       On becoming a State party to the Optional Protocol, Jamaica recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not. This case was submitted for consideration before Jamaica's denunciation of the Optional Protocol became effective on 23 January 1998; in accordance with article 12(2) of the Optional Protocol the communication is subject to the continued application of the Optional Protocol. 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 ninety days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

APPENDIX

Individual opinion by Hipólito Solari Yrigoyen

(partly dissenting)

            I hold a dissenting opinion on paragraph 7.1. The author has made specific allegations of ill-treatment while detained in police custody and later in St. Catherine's Prison, where he suffered an injury to his hand which rendered it unusable for 17 days; according to his counsel, the prison authorities were apprised of the fact. The State party has provided no information on these claims, merely asking the Committee for further details: this is not proper in view of its obligation under article 4, paragraph 2, of the Optional Protocol. Nor has the Committee been informed whether any investigation into the matter was mounted. In the light of the foregoing, I consider that account must be taken of the author's accusations, and that the treatment the author suffered, both in police custody and in prison, violates articles 7 and 10, paragraph 1, of the Covenant.

(Signed) Hipólito Solari Yrigoyen

[Done in English, French and Spanish, the Spanish text being the original version. Subsequently issued also in Arabic, Chinese and Russian as part of the present report.]

           V. Communication No. 699/1996, Maleki v. Italy

               (Views adopted on 15 July 1999, sixty-sixth session)*

Submitted by:                                   Ali Maleki (represented by his son, Kambiz Maleki)

Alleged victim:                                The author

State party:                                       Italy

Date of communication:                   28 January 1999 

Date of decision on

admissibility:                                   15 July 1999

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

            Meeting on 15 July 1999,

            Having concluded its consideration of communication No. 699/1996 submitted to the Human Rights Committee by Ali Maleki, under the Optional Protocol to the International Covenant on Civil and Political Rights,

            Having taken into account all written information made available to it by the author of the communication and the State party,

            Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.         The author of the communication is Ali Maleki, a sixty-five-year-old Iranian citizen currently serving a 10-year prison sentence in Italy for drug trafficking. The case is submitted on his behalf by his son Kambiz Maleki. He claims that his father is a victim of violations by Italy of the International Covenant on Civil and Political Rights, although he does not specify which provisions of the Covenant he considers to have been violated.

The facts as submitted by the author

2.1       The author, a truck driver for over 40 years who transported consignments between Iran and Italy, was tried and sentenced, in absentia, on 21 November 1988 to 10 years imprisonment for having imported and sold narcotic drugs in Italy. His sentence was confirmed by the Court of Appeal on 16 October 1989.

_______________________

            * The following members of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Prafullachandra N. Bhagwati, Ms. Christine Chanet, Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar Gaitán de Pombo, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga, Mr. Martin Scheinin, Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski, Mr. Maxwell Yalden and Mr. Abdallah Zakhia. Under rule 85 of the rules of procedure, Mr. Fausto Pocar did not participate in the consideration of the communication.

2.2       In 1991, while in California on a family visit, the author was arrested and detained for about six months, while awaiting his extradition to Italy. On 9 April 1992, the United States District Court, Central District of California, denied the Italian Government's request for his extradition. In May or June of 1995, the author returned to Iran via Italy. He was arrested at Rome airport, and has been detained since.

The complaint

3.1       The author claims that he was wrongly convicted, and that the case was one of mistaken identity based on one single tapped telephone conversation between him and a known drug dealer, who was also a truck driver and who had been under police surveillance for some time.

3.2       Kambiz Maleki alleges that his father was tried in his absence and that the Public Prosecutor's Office appealed the sentence twice in order to effectively bar his father from appealing. This, he claims, means that domestic remedies have been exhausted or are unavailable. In support of his contention, he submits a letter from an Italian lawyer, which states that article 630 of the Criminal Code of Procedure precludes a reopening of the case and concludes that the only possibility remaining is to request the transfer of Mr. Maleki to Iran, to serve the remainder of the sentence there.

3.3       The author's son notes that the only connection in the file submitted by the Italian authorities to the United States in substantiation of the extradition request, contains one single reference to his father.

3.4       Kambiz Maleki adds that his father has been on a hunger strike to obtain a review of his conviction. He claims that his father has a serious heart ailment, having refused heart surgery while in the United States because he wanted to die in his native country. He claims that his father has also been denied the possibility of serving his sentence in his own country (Iran).

State party's information and author's comments thereon

4.1       In its submission of 17 September 1996, the State party explains that Mr. Maleki was tried and convicted in absentia, duly represented by his court-appointed attorney. The decision of the court of first instance was appealed both by Mr. Maleki's counsel and the public prosecutor. The State party assumes that he was informed by his counsel of the proceedings followed against him in Italy. He was charged for drug trafficking. When the authorities were unable to execute the warrant, he was declared a fugitive. The State party notes that when the author was arrested in the United States, he was assisted by an American attorney who argued against the extradition. It further notes that the Office of the Public Prosecutor informed Mr. Maleki of the ways and means still open to him for a revision or reversal of the judgments.

4.2       The State party contends that Mr. Maleki's medical condition is being closely monitored and submits a substantial file in this respect.

4.3       The State party argues that the claims about unfair trial relate to the evaluation of facts and evidence in the case which is better left to the appellate Courts of States parties.

4.4       With respect to the claim that Mr. Maleki should be transferred to his own country (Iran) to serve his sentence, the State party notes that his petition could not be entertained in view of the fact that Iran is not a signatory to the Convention on the Transfer of Sentenced Prisoners (Strasbourg, 21 March 1983) nor is there a bilateral agreement on the matter between Italy and Iran.

5.         In his comments Kambiz Maleki reiterates the claims that a trial in absentia constitutes a violation of the Covenant even if his father had a court-appointed lawyer, and that his father suffers from an acute heart condition for which he requires surgery.

Committee's decision on admissibility

6.1       Before considering any claim contained in a communication the Human Rights Committee must in accordance with rule 87 of its rules of procedure, decide whether or not it was admissible under the Optional Protocol to the Covenant.

6.2       As regards the author's complaint that he had a heart condition which was not being treated adequately, the Committee noted that the State party had submitted a comprehensive file showing that Mr. Maleki's medical condition was being closely monitored. In the circumstances, the Committee considered that the author had failed to substantiate this claim, for purposes of admissibility.

6.3       With respect to the author's complaint that he had not been transferred to his own country to serve his sentence, the Committee noted that the Covenant does not provide that an alien convicted and sentenced for a crime has a right to serve his sentence in his own country. Accordingly, this part of the communication was inadmissible ratione materiae.

6.4       The author's claim that he was tried in absentia was not contradicted by the State party. On the contrary, the State party conceded that the author was not present at his trial, but argued that he was represented by court-appointed counsel and that he therefore had a fair trial. The Committee was of the opinion that, in these circumstances, the author had substantiated, for the purposes of admissibility, his claims that his right to a fair trial, under article 14, paragraph 1, and his right, under article 14, paragraph 3 (d), to be tried in his presence, were violated, and these should be examined on their merits.

6.5       In deciding on admissibility the Committee was aware that upon ratification of the Covenant the State party made the following declaration: "The provisions of article 14, paragraph 3 (d), are deemed to be compatible with existing Italian provisions governing trial of the accused in his presence and determining the cases in which the accused may present his own defence and those in which legal assistance is required". The State party did not refer to this declaration in its detailed reply to the author's communication. The declaration's scope, and its effect on the author's claim of a violation of article 14, paragraph 3 (d), therefore remained unclear. The Committee decided that both the State party and the author could include in their replies on the merits arguments relating to the scope of the above declaration, and its effect on the admissibility of the author's claim under article 14. The Committee would examine such arguments together with the arguments on the merits.

6.6       The Human Rights Committee therefore decided that the communication was admissible.

States party's observations on the merits

7.         In its submission, dated 18 February 1998, the State party in response to the Committee's decision on admissibility, raises two arguments:

            a.         That the declaration made by the State party upon ratification of the Covenant constitutes a reservation that precludes the Committee from holding that a trial in absentia, according to the law of the State party, violates the State party's undertakings under the Covenant. The communication should therefore be declared inadmissible;

            b.        Even if the communication were to be considered admissible, the provisions of Italian law regarding trial in absentia are compatible with article 14, paragraph 3 (d) as, inter alia, in certain circumstances they allow a person who has been tried in absentia to apply for a retrial in his or her presence.

8.         The author's son, who represents his father in this communication, informed the Committee that he does not intend to submit further arguments, and the Committee can therefore proceed to examine the arguments raised by the State party.

Issues and proceedings before the Committee

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 for in article 5, paragraph 1, of the Optional Protocol.

9.2       The State party's argument is that its declaration concerning article 14, paragraph 3 (d) is a reservation that precludes the Committee examining the author's argument that his trial in absentia was not fair. However, that declaration deals only with article 14, paragraph 3 (d), and does not relate to the requirements of article 14, paragraph 1. The State party itself has argued that its legal provisions regarding trial in absentia are compatible with article 14, paragraph 1. Under this provision, basic requirements of a fair trial must be maintained, even when a trial in absentia, is not, ipso facto, a violation of a State party's undertakings. These requirements include summoning the accused in a timely manner and informing him of the proceedings against him.

9.3       The Committee has held in the past that a trial in absentia is compatible with article 14, only when the accused was summoned in a timely manner and informed of the proceedings against him. In order for the State party to comply with the requirements of a fair trial when trying a person in absentia it must show that these principles were respected.