Victim:                                             The author

State party:                                       Trinidad and Tobago

Date of communication:                   13 February 1994 (initial submission)

Date of decision on

admissibility:                                               15 March 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.594/1992 submitted to the Human Rights Committee by Mr. Irving Phillip, 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 Irvin Phillip, a Trinidadian citizen serving a life sentence at the State Prison of Port-of-Spain, Trinidad and Tobago. He claims to be a victim of a violation of articles 7, 10 (1) and 14 (1), 14 (3) (b), (d) and (e) of the International Covenant on Civil and Political Rights by Trinidad and Tobago. He is represented by Ms. Natalia Schiffrin of Interights.

             * The following members of the Committee participated in the examination of the present communication: Mr. Prafullachandra N. Bhagwati, Mr. Thomas Buergenthal, Ms. Christine Chanet, Lord Colville, Mr. Omran El Shafei, Ms. Elizabeth Evatt, Ms. Pilar Gaitán de Pombo, Mr. Eckart Klein, Mr. David Kretzmer, Ms. Cecilia Medina Quiroga, Mr. Julio Prado Vallejo, Mr. Martin Scheinin, Mr. Roman Wieruszewski, Mr. Maxwell Yalden and Mr. Abdallah Zakhia. Pursuant to rule 85 of the rules of procedure, Mr. Rajsoomer Lallah did not participate in the adoption of the Views.

The facts as submitted

2.1       The author, together with Peter Holder and Errol Janet, was jointly charged with the murder, on 29 March 1985, of one Faith Phillip (no relation to the author). On 5 May 1988, after a trial which lasted one month, the jury failed to return a unanimous verdict, and a retrial was ordered. On 18 June 1988, the accused were found guilty as charged and sentenced to death by the Second Assizes Court of Port-of-Spain. On 5 April 1990, the Court of Appeal of Trinidad and Tobago dismissed the appeal of Messrs. Holder and Phillip, whereas it acquitted Errol Janet; it issued a written judgement two weeks later. Mr. Phillip's petition for special leave to appeal to the Judicial Committee of the Privy Council was dismissed on 24 April 1991. On 31 December 1993 Mr. Phillip's death sentence was commuted to life imprisonment.

2.2       The subject of the communication is Mr. Phillip's second trial, at which the Court denied the legal aid attorney's motion for an adjournment in order to better prepare for the defence or, in the alternative, to allow Mr. Phillip to engage other counsel.

2.3       Ms. Zelina Mohammed, a cashier at the Zodiac Recreational Club in Port-of-Spain was the sole eye witness to the crime and the prosecution's main witness. At trial she testified that, on the morning of 29 March 1985, she was at work, inside the bar, and that Faith Phillip sat in front of the bar, when three men came in. Mr. Holder ordered a drink and after a while went downstairs; she heard a sound as if the gate to the entrance was being closed. When Mr. Holder came back, she asked Faith Phillip, to have a look. Shortly thereafter Mr. Phillip assaulted Faith Phillip, while Mr. Holder kicked open the door to the bar and entered the bar together with Mr. Janet. Both were holding knives. Mr. Holder forced Ms. Mohammed to open the cash register and give them $300. She was also forced to show them the room of the Club's owner which was at the back. There, Mr. Holder tied her up, while Mr. Janet searched the room for valuables. She was told to face the wall, but before doing so she saw Mr. Phillip in the corridor, pulling Faith Phillip into another room. She then heard fighting, which continued for about five minutes. After it stopped she heard footsteps, as if the accused were leaving. Finally, she was untied by the Club's electrician who passed by and they found Faith Phillip lying on the floor, with her face swollen and blood running from her nose. The deceased was pronounced dead on arrival to hospital. The cause of death was a massive brain haemorrhage, resulting from blunt force injuries to her head.

2.4       At the identification parade held on 4 April 1985 Ms. Mohammed selected Mr. Phillip from a group of eight men as someone who "looked like" one of the persons involved in the crime. Mr. Phillip claims mistaken identification.

2.5       At the trial, Mr. Holder gave sworn testimony admitting participation in the robbery. He denied, however, having struck the deceased. He stated that while he and Mr. Janet were emptying the drawers in the Club owner's room, he saw Mr. Phillip going up the corridor with Faith Phillip. When they left the building, they met Mr. Phillip outside.

2.6       The prosecution stated that all three defendants made statements under caution, witnessed by a justice of the peace, admitting their involvement in the crime. In his statement the author admitted the robbery but denied taking any part in the beating of the deceased. At trial, however, he gave sworn testimony denying knowledge of the crime, claiming that he had never left his home on 29 March 1985 and challenging the identification by Ms. Mohammed. His statement to the police was admitted into evidence after a voir dire.

2.7       Mr. Janet affirmed upon oath his previous statement to the police. He stated that the robbery was planned by Messrs. Holder and Phillip, who had received information that the owner of the Club kept all his money at the Club. Out of fear of both men, he assisted in the robbery. He further stated that he prevented Mr. Holder from further hitting the deceased.

The complaint

3.1       The author claims that his trial was unfair in breach of article 14, paragraph 1, of the Covenant. In this context he complains about the inconsistency in the testimony of witnesses during the first trial. He points out that, as the prosecution failed to prove his guilt at the first trial, he should have been acquitted. The author further claims that, as the prosecution had failed to prove his mens rea, the judge should have brought the issue of manslaughter to the attention of the jury.

3.2       With respect to the time and facilities to prepare his defence in the retrial, the author claims that counsel was appointed on Friday 10 June 1988 and that the trial commenced on Monday 13 June 1988. Counsel's request for additional time to prepare the defence and to meet with Mr. Phillip was denied, in violation of article 14, paragraphs 3 (b) and (e) of the Covenant.

3.3       He further complains that he was denied a counsel of his choosing at the retrial, in violation of article 14, paragraph 3 (d). It appears from the notes of evidence that during the retrial the author complained about the performance of his counsel who was young and had never defended a capital case. Accordingly the author requested an adjournment to obtain a counsel of his own choice. The judge advised counsel to make his application to withdraw from the case in court. The court subsequently refused counsel's application. The author states that the judge told him that he could not afford an attorney of his own choice and that therefore the case would not be postponed. According to the author, his conviction is attributable to the judge's tyrannical behaviour in addition to the inexperience of counsel.

3.4       With respect to the conditions under which Mr. Phillip is detained, counsel argues that the prison cell is underground, filthy, with bad ventilation and infested with cockroaches and rats. He sleeps on pieces of carpet and torn cardboard box on the cold concrete floor without any bedding. Food is inadequate. There are no toiletries or medication. The complaints, however, have not been reported to any authorities, because the author fears reprisal from the warders and claims to be living in complete fear for his life. These conditions are said to constitute violations of articles 7 and 10 (1) of the Covenant.

State party's observations and author's comments

4.1       In its submission of 23 September 1993 the State party objects to the admissibility of the communication and refers, in particular, to the Committee's jurisprudence according to which the evaluation of facts and evidence is for the Courts of States parties.

4.2       It further informs the Committee that on 23 August 1993, Irvin Phillip filed a constitutional motion in the High Court in which he is seeking a declaration that the execution of the sentence of death on him will be unconstitutional, null and void as well as an order vacating the sentence of death and staying the execution. On 23 August 1993, the Court granted a conservatory order directing the State to undertake that no action would be taken to carry out the sentence of death on the author until the hearing and determination of the motion.

4.3       Moreover, the State party argues:

            (a)       The author has not indicated the provision or provisions of the Covenant on Civil and Political Rights which he alleges have been violated by the Republic of Trinidad and Tobago; and

            (b)       The facts as submitted do not raise issues under any of the provisions of the Covenant;

            (c)       According to the constant jurisprudence of the Human Rights Committee, it is in principle not for the Committee but for the Courts of States Parties to the Covenant to evaluate facts and evidence in a particular case. The decision of the courts in Trinidad and Tobago and the Privy Council in this case cannot be viewed as being arbitrary or as amounting to a denial of justice;

            (d)       By reasons of the foregoing, the communication is incompatible with the provisions of the Covenant.

4.4       In its submission of 9 February 1995, the State party informs the Committee that pursuant to the judgment of the Judicial Committee of the Privy Council in the case of Earl Pratt and Ivan Morgan v. the Attorney General of Jamaica, the sentences of death against Messrs. Peter Holder and Irvin Phillip were commuted to sentences of life imprisonment.

5.1       By letter of 21 June 1994, Interights, a non-governmental organization in the United Kingdom informed the Committee that it had been asked by Mr. Phillip to represent him before the Committee.

5.2       By letter of 27 March 1995 Interights resubmitted the communication on behalf of Mr. Phillip, enclosing the text of the notes of evidence and the transcript of the trial before the Second Assize Court in Port-of-Spain against Messrs. Peter Holder, Irvin Phillip and Errol Janet.

Committee's decision on admissibility

6.1       During its 56th session the Committee considered the admissibility of the communication.

6.2       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.

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 Privy Council had dismissed the author's application for leave to appeal. Therefore, with regard to the author's allegations of unfair trial, the Committee was satisfied that domestic remedies had been exhausted for purposes of the Optional Protocol. In this connection, the Committee also noted that, following the commutation of the author's death sentence, the author's constitutional motion before the High Court had become moot.

6.4       As regards the author's claim that the conditions of his detention were cruel, inhuman and degrading, the Committee noted that the State party had so far not attempted to refute his claim nor had it provided information about effective domestic remedies available to the author. In these circumstances, given the author's statement that he had not filed a complaint because of his fears of the warders, the Committee considered that it was not precluded by article 5, paragraph 2 (b), of the Optional Protocol from examining the complaint, which might raise issues under articles 7 and 10 of the Covenant.

6.5       With regard to that part of the author's communication relating to the evaluation of evidence and to the instructions given by the judge to the jury, in particular, the failure to instruct the jury on the possibility of manslaughter, the Committee referred to its established jurisprudence that it was, in principle, for the appellate courts of States parties to the Covenant, and not for the Committee, to evaluate facts and evidence in a particular case. As to the author's allegation that he had not made any admission to the police and that the identification by the main prosecution witness was faulty, the Committee noted that these matters were the subject of a voir dire, at which the facts and evidence were evaluated. Similarly, it was not for the Committee to review specific instructions to the jury by the judge, unless it could be ascertained that the instructions to the jury were clearly arbitrary or amounted to a denial of justice, or that the judge manifestly violated his obligation of impartiality. The material before the Committee did not reflect that the trial judge's instructions or the conduct of the trial suffered from such defects. This part of the communication was therefore inadmissible under article 3 of the Optional Protocol.

6.6       As to the other claims under article 14, paragraph 3, the Committee found that the author had substantiated, for purposes of admissibility, his allegations that at the retrial he did not have sufficient time and facilities to prepare his defence, that his defence counsel was inexperienced and that he was denied the opportunity to obtain counsel of his own choosing. The Committee considered that it should examine this part of the communication on the merits.

6.7       Consequently, on 15 March 1996, the Human Rights Committee declared the communication admissible in as much as it appeared to raise issues under articles 7, 10, and 14, of the Covenant.

Issues and proceedings before the Committee

7.1       The Committee has considered the communication in the light of all the information provided by the parties. It notes with concern that, following the transmittal of the Committee's decision on admissibility, no further information has been received from the State party clarifying the matters raised by the present communication despite reminders sent on 11 March 1997, 30 April and 12 May 1998. The Committee recalls that it is implicit in article 4, paragraph 2, of the Optional Protocol, that a State party examine in good faith all the allegations brought against it, and that it provide the Committee with all the information at its disposal. In light of the failure of the State party to cooperate with the Committee on the matter before it, due weight must be given to the author's allegations, to the extent that these have been substantiated.

7.2       The Committee notes that the information before it shows that the author's counsel requested the court to allow him an adjournment or to withdraw from the case, because he was unprepared to defend it, since he had been assigned the case on Friday 10 June 1988 and the trial began on Monday 13 June 1988. The judge refused to grant the request allegedly because he felt the author would be unable to afford counsel of his own choice. The Committee recalls that while article 14, paragraph 3(d), does not entitle the accused to choose counsel provided to him free of charge, the Court should ensure that the conduct of the trial by the lawyer is not incompatible with the interests of justice. The Committee considers that in a capital case, when counsel for the accused who was not experienced in such cases requests an adjournment because he is unprepared to proceed the Court must ensure that the accused is given an opportunity to prepare his defence. The Committee is of the opinion that in the instant case, Mr. Phillip's counsel should have been granted an adjournment. In the circumstances, the Committee finds that Mr. Phillip was not effectively represented on trial, in violation of article 14, paragraph 3 (b) and (d), of the Covenant.

7.3       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 respected constitutes, if no further appeal against conviction is possible, a violation of article 6 of the Covenant. As the Committee noted in its General Comment 6 [16], the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that " procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review of conviction and sentence by a higher tribunal". In this case, since the final sentence of death was passed without due respect for the requirements of article 14, the Committee must hold that there has also been a violation of article 6 of the Covenant.

7.4       The Committee notes that with regard to the author's conditions of detention he has made precise allegations, of being kept in a filthy, badly ventilated, cockroach and rat infested, underground cell. He sleeps on pieces of carpet and torn cardboard box on cold concrete floor, with no bedding. Food is inadequate and there are no toiletries or medication. The State party has made no attempt to refute these specific allegations. In the circumstances and in the absence of a response from the State party, the Committee takes the allegations as undisputed. It finds that holding a prisoner in the above conditions of detention violates his right to be treated with humanity and with respect for the inherent dignity of the human person, and is therefore contrary to 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 a violation of articles 10, paragraph 1, and 14, paragraph 3 (b) and (d), and consequently of article 6 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. Phillip with an effective remedy, including immediate release and compensation. The State party is under an obligation to ensure that similar violations do not occur in the future.

10.       Bearing in mind that by becoming a State party to the Optional Protocol, Trinidad and Tobago has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 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.]

            E. Communication No. 602/1994, Hoofdman v. the Netherlands

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

Submitted by:                                   Cornelis Hoofdman (represented by Mr. L. J. L. Heukels, a lawyer in Haarlem)

Alleged victim:                                The author

State party:                                       The Netherlands

Date of communication:                   26 May 1994

Date of decision on

admissibility:                                   3 July 1996

            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. 602/1994 submitted to the Human Rights Committee by Cornelis Hoofdman, 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 Cornelis P. Hoofdman, a citizen of the Netherlands born in 1952. He claims to be a victim of violations by the Netherlands of article 26 of the International Covenant on Civil and Political Rights, as well as of his right to respect for his private and family life, and his right to a fair hearing, as protected by articles 6, paragraph 1, and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. He is represented by Mr. L. J. L. Heukels, a lawyer in Haarlem.

Facts as submitted by the author

2.1       The author and his girlfriend, lived together as an unmarried couple from January 1986 until her death, on 14 February 1991. On 26 February 1991, the author applied for a pension or temporary benefit under the General Widows' and Orphans' Act (Algemene Weduwen- en Wezenwet) (AWW). On 26 April 1991, the Social Security Bank (Sociale Verzekeringsbank) (SVB), which is responsible for implementing the AWW, rejected the author's application on the ground that, since he had not been married, he did not meet AWW requirements. The decision was based on articles 8 and 13 of the Act, under which pension entitlements or temporary benefits are only awarded to the widow or the widower of the (insured) spouse.

2.2       On 12 May 1991, the author appealed to the Board of Appeal (Raad van Beroep), arguing that the distinction drawn by the SVB between married and unmarried cohabitants, for purposes of AWW benefits, amounted to prohibited discrimination within the meaning of article 26 of the Covenant. The President of the Board of Appeal, on 2 December 1991, declared the appeal unfounded, relying on a decision taken on 28 February 1990 by the highest court in social security cases, the Central Board of Appeal (Centrale Raad van Beroep) (CRvB), in a case similar to that of the author.

2.3       In that decision (also concerning the AWW), the CRvB pointed out that, further to the Committee's Views on communication No. 180/1984 (Danning v. the Netherlands), it had already decided, in cases concerning the Sickness Benefits Act, that differentiation between married and unmarried cohabitants under Netherlands social security legislation did not amount to prohibited discrimination within the meaning of article 26 of the Covenant. According to the CRvB, the social conditions and views in the field of marriage and cohabitation prevailing at the time in question (1987) had not changed in such a way as to conclude that the restriction laid down in the AWW violated article 26 of the Covenant. In this connection, the CRvB noted that the fact that the legislature, in the light of the recent revision of the social security system, had introduced the principle of equality of treatment of married and unmarried couples who shared a household, did not necessarily mean that the restriction still maintained under the AWW (i.e., that only the widower or widow of the insured spouse was entitled to a pension or temporary benefits) amounted to a prohibited differentiation under article 26 of the Covenant. The CRvB added that, even though discrimination did not arise, the Dutch Government remained, of course, free to strive for the equal treatment of married and unmarried cohabitants.

2.4       On 24 December 1991, the author filed an appeal against the decision of 2 December 1991 with the full Board of Appeal. He argued that the CRvB's findings in the other case were based on the social conditions and views in the field of marriage and cohabitation prevailing in 1987, and that the CRvB had not excluded that those conditions and views could be subject to changes within a short period of time, as a result of which the denial of AWW benefits to unmarried cohabitants would amount to prohibited discrimination within the meaning of article 26 of the Covenant. The author pointed out that the relevant time in question in his case was 14 February 1991, when his girlfriend died; he contended that at that date changes had occurred in the conditions and views held in society in respect of marriage and cohabitation.

2.5       In this connection, the author referred to the following passages of the Explanatory Memorandum to the proposed new General (Bereaved) Relatives' Act (Algemene Nabestaanden Wet) (ANW), which was discussed in the Lower House in 1990-1991:

            -          "The General Widows' and Orphans' Act is subject to revision. The changes that have occurred in society since the entering into force [of the Act] in 1959 justify this conclusion";

            -          "A third reason for revising the AWW is the wish to secure the equal treatment of married and unmarried cohabitants. Through revision of the AWW, shape should be given to the [...] objective not to differentiate between forms of cohabitation";

            -          "[...] If equal treatment of married and unmarried cohabitants cannot be realized in the ANW, it will result in an incongruity within the social security system. If the ANW is to be excluded, unjustifiable situations could arise. From that perspective, also, the Government considers that the equal treatment of married and unmarried cohabitants under the ANW is necessary."

            According to the author, the drafting of the ANW and the view of the Government as laid down in the Explanatory Memorandum to that Act indicated that conditions and views in the field of marriage and cohabitation held in society in 1991 were different from those that prevailed in 1987.

2.6       On 26 May 1992, the Board of Appeal rejected the author's appeal, referring to a judgment of 16 October 1991 of the Central Board of Appeal; in that case, the CRvB had decided that, in October 1991, the restriction in the AWW under which only the widow or widower was entitled to AWW benefits did not yet amount to prohibited discrimination within the meaning of article 26 of the Covenant. The Board of Appeal concluded that, accordingly, the same could be said for the author's case, and that the proposals under the ANW did not make any difference.

2.7       On 29 June 1992, the author appealed to the Central Board of Appeal. He argued that, according to the CRvB's own jurisprudence, the date of decease of the partner with whom the applicant lived together is relevant to the question of whether the difference of treatment under the AWW between married people and unmarried cohabitants constituted prohibited discrimination within the meaning of article 26 of the Covenant; the question of whether the conditions and views held in society in the field of marriage and cohabitation have changed should thus be assessed as of that moment. The author pointed out that the CRvB's judgment of 16 October 1991 concerned a request for AWW benefits of an applicant whose partner had died on 6 February 1988; he contended that, while in 1988 one could still have doubts as to whether relevant changes had occurred in social conditions and views, one could not question this in 1991, since, at that time, the proposed ANW, with its principle of equal treatment of married and unmarried cohabitants, had been placed before the Lower House; the fact that the ANW had not yet entered into force did not make a difference.

2.8       On 17 June 1993, the Central Board of Appeal confirmed the Board of Appeal's judgment of 26 May 1992. It referred to its earlier jurisprudence (including a judgment of 24 May 1993) on the matter and pointed out that it had already ruled that it was for the legislature to outline which categories of cohabitants were entitled to pensions or benefits after the death of the partner, and that it did not consider it expedient to interfere with the proposed legislation (i.e., the ANW). With this, it is submitted, all domestic remedies have been exhausted.

Complaint

3.1       The author claims that his private and family life has not been respected because he was denied AWW benefits simply because he was not married. He points out that under several other social security acts, unmarried cohabitants are treated as married cohabitants, and that he and his partner fulfilled the criteria used in respect of these acts (joint accommodation and joint contribution to the household costs). In this context, he submits that both he and his partner were unemployed and received unemployment benefits as a "married couple" under the relevant act. However, in order to receive benefits under the AWW, he would have been forced to marry first; according to the author, such an artificial construction constitutes arbitrary interference with his private life.

3.2       The author refers to the grounds he argued before the Board of Appeal and Central Board of Appeal; he reiterates that conditions and views held in society as to marriage and cohabitation have changed, and claims that the unequal treatment under the AWW of married couples and unmarried couples who share a household amounts to prohibited discrimination within the meaning of article 26 of the Covenant.

3.3       The author further argues that he did not receive a fair hearing with regard to the determination of his right to a pension benefit, because the law applied was discriminatory.

3.4       It is submitted that the same matter has not been submitted to the European Commission of Human Rights.

State party's observations and author's comments thereon

4.         The State party, by submission of 30 August 1995, raises no objections to the admissibility of the author's claim under article 26 of the Covenant. With regard to his claims under articles 6 and 8 of the European Convention, however, the State party notes that these claims concern another convention than the Covenant, and, moreover, that the author has not submitted these claims to the Dutch courts. The State party concludes therefore that this part of the communication is inadmissible.

5.         In his comments on the State party's submission, the author states that his claims under articles 6 and 8 of the European Convention are to be seen in conjunction with his claim under article 26 of the Covenant, and should therefore be considered admissible.

Committee's decision on admissibility

6.1       At its 57th session, the Committee considered the admissibility of the communication. It noted that the State party had raised no objections to the admissibility of the author's claim under article 26 of the Covenant. The Committee considered that the question whether or not the difference in treatment of the author, as a consequence of his marital status, was unreasonable or arbitrary, should be examined on the merits, in the context of the State party's obligations under article 26 in conjunction with article 23, paragraph 1, of the Covenant. It invited the State party to explain the basis of the differentiation, as well as the different obligations and benefits under the law for married and unmarried couples at the material time.

6.2       The Committee noted the State party's objections to the admissibility of the author's claims of unfair hearing and interference with private and family life. The Committee observed, however, that articles 6, paragraph 1, and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms were similar in contents to articles 14, paragraph 1, and 17 of the Covenant. The Committee recalled that, whereas authors must invoke the substantive rights contained in the Covenant, they were not required, for purposes of the Optional Protocol, necessarily to do so by reference to specific articles of the Covenant.

6.3       The author had claimed that the difference in treatment between married and unmarried couples under the AWW constituted a violation of his right to respect for his private and family life. The Committee noted that the information before it showed that the State party at no time interfered with the author's decision to cohabit with his girlfriend without marrying her, and that the author was free to marry or not to marry. The fact that a freely made decision regarding one's private life may have certain legal consequences in the field of social security could not be seen as constituting arbitrary or unlawful interference by the State party under article 17 of the Covenant. This part of the communication was therefore inadmissible under article 3 of the Optional Protocol, as being incompatible with the provisions of the Covenant.

6.4       As regards the author's claim that he had not had a fair hearing with respect to the determination of his right to a pension benefit, the Committee noted that he had not adduced any information to substantiate, for purposes of admissibility, that the hearings concerning the determination of his pension claim were unfair. This part of the communication was therefore inadmissible under article 2 of the Optional Protocol.

7.         On 3 July 1996, the Human Rights Committee therefore decided that the communication was admissible as far as it might raise issues under article 26, in conjunction with article 23, paragraph 1, of the Covenant.

State party's submission on the merits and the author's comments

8.1       By submission of 6 February 1997, the State party refers to the Committee's decision in communication No. 180/1984 (Danning v. the Netherlands). It explains that in the Netherlands, marriage entails specific legal consequences that do not apply to unmarried cohabitants. The latter are free to choose whether or not to enter into matrimony; if they do, they become subject to a different set of laws. The Dutch Civil Code contains many provisions solely applicable to married couples. For example, a married person is obliged to provide for his or her spouse's maintenance; the spouse is jointly liable for debts incurred in respect of common property; a married person requires the permission of his or her spouse for certain undertakings. Matrimonial law also covers the rights and obligations in case of divorce. Likewise, inheritance law distinguishes between married and unmarried persons. According to the State party, the legal situation that formed the basis of the Committee's decision in Danning was unchanged in 1991, the year in which the author applied for a benefit under the AWW.

8.2       The State party explains that the AWW, which was in force until 1 July 1996, reflected the provisions of the Civil Code. Under the AWW, all insured persons with an income paid contributions and the risk of death was covered only so long as the marriage partner on whose death the entitlement to benefit depended remained insured. The purpose of the AWW, which entered into force on 1 October 1959, was to provide a minimum income for a person's widow who could not be deemed able to support herself by her own earnings. The conditions for an entitlement to pension were that the widow, at the time of her spouse's death (a) had an unmarried child of her own, or (b) was pregnant, or (c) was unfit for work, or (d) was 40 years or older. If none of these conditions were met, the widow was entitled to a temporary benefit.

8.3       On 7 December 1988, the CRvB decided that the restrictions of AWW entitlements to widows was incompatible with article 26 of the Covenant, and since then widowers are entitled to a benefit, under the same conditions as widows, awaiting new legislation.

8.4       The State party maintains that many legal differences remain between marriage and co-habitation and that equal treatment is by no means self-evident and cannot be claimed merely on the basis of a change in the social climate. The State party does not accept that its willingness to incorporate the equal treatment of married persons and cohabitants into legislation implies that it should be obliged to treat these two groups on an equal basis in the absence of, or prior to, the introduction of legislative measures to that effect.

8.5       In this regard, the State party also refers to its submission in communication No. 395/1990 (Sprenger v. the Netherlands) and emphasizes that at no time has it taken a general decision to abolish the distinction in legal status between married and unmarried couples. However, in undertaking an extensive programme of legislation, the State party is responding to shifts in social views on this matter and is aiming to achieve the progressive introduction of equal treatment in the relevant laws. The State party emphasizes, however, that each law is being examined separately to see whether it requires amendment. The State party is of the opinion that although the equal treatment of married and unmarried couples was introduced in tax legislation in 1983 and in certain social insurance and social assistance schemes in 1987 and 1988, this does not mean that the right to equal treatment can be invoked in respect of other legislation without being formalised by law. In this connection, the State party associates itself with the individual opinion of Messrs. Ando, Herndl and Ndiaye in the Sprenger decision, in which it was stated that article 26 should be seen as a general undertaking on the part of States parties to the Covenant to regularly review their legislation in order to ensure that it corresponds to the changed needs of society.

8.6       In the instant case, the CRvB held that it was up to the legislature to decide whether married and unmarried partners should be treated alike for purposes of widow(er) pensions.

8.7       With regard to the author's argument that he and his partner received unemployment benefit as a married couple, the State party explains that the RWW benefit received by the author was not a social insurance benefit but a social assistance benefit, meant to enable persons without any other means of income to support themselves. It is awarded to persons who have no income or whose income is below the minimum set by the Government. The benefits are paid out of public funds and their amount depends on the actual situation and is means-tested. Married couples, unmarried couples and single persons sharing a home have lower costs and therefore receive a reduced benefit.

8.8       The State party refers to its new legislation, the Surviving Dependants Act, which entered into force on 1 July 1996. It provides for entitlement to surviving dependants who (a) have an unmarried child under the age of 18 who does not belong to another person's household, or (b) are unfit for work, or (c) were born before 1 January 1950. The benefits are means-tested. The State party points out that the author is not entitled to a pension under the new legislation, as he does not fulfil any of the conditions set out in the legislation.

8.9       In this context, the State party points out that the duration of the debate concerning the new legislation (the bill was introduced on 12 March 1991) and the problems that were encountered are evidence that it is by no means manifest that married and unmarried persons should be treated equally, outside the context of an extensive and careful legislative programme.

9.         In his comments on the State party's submission, counsel notes that the State party provides general information on the distinction between married and unmarried couples, but fails to explain the specific reasons for the distinction in the AWW. He states that the author had the obligation to pay contributions under the AWW as a married person, but that he did not establish the right to benefit from the AWW as a married person. This is said to constitute discrimination within the meaning of article 26.

10.1     In a further submission, dated 16 March 1998, the State party explains that the AWW is a national insurance scheme ensuring every inhabitant of the Netherlands over 15 years of age. Pensions paid out under the scheme are funded by contributions payable by those insured. Contributions are means-tested, the contribution rate being the same for all the insured. The State party emphasizes that in determining a person's contribution under the scheme, marital status is of no account whatsoever. The State party concludes that no inequality of treatment exists on the basis of marital status in relation to persons insured under the AWW.

10.2     The State party further explains that the AWW makes a distinction between AWW pensions and temporary pensions. The AWW pension is a long-term benefit that is awarded until the person reaches the age of 65. The temporary benefit is a short-term benefit awarded for a maximum of 19 months and confined to widows or widowers who have no unmarried children, who are not pregnant or unfit to work, and have not yet attained 40 years of age. The State party submits that these persons are deemed to be capable of providing for themselves and are thus ineligible for an AWW pension, but they are awarded a temporary benefit to give them time to adjust to the situation.

Issues and proceedings before the Committee

11.1     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.

11.2     The issue before the Committee is whether the author is a victim of a violation of article 26 of the Covenant, because he was denied a widower's pension on the basis of his marital status. The Committee notes that on the basis of the information before it, it appears that the author, even if he had been married to his partner rather than cohabitating with her without marriage, would not have been entitled to a pension under the AWW, since he was under 40 years of age, not unfit for work and had no unmarried children to care for. The matter before the Committee is thus confined to the entitlement to a temporary benefit only.

11.3     The author has claimed that he paid contributions under the AWW as a married person, and that the failure to grant him the same rights to benefits as a married person therefore constitutes unequal treatment, in violation of article 26 of the Covenant. The State party has refuted this argument, and stated that the contribution under the AWW was the same for married and unmarried persons alike. The State party has also explained that the AWW was a national insurance, to which all Dutch residents with an income contributed, and that benefits were available, among certain other categories of persons, to married persons whose spouse had died.

11.4     The Committee recalls its jurisprudence that not every distinction amounts to prohibited discrimination under the Covenant, as long as it is based on reasonable and objective criteria. The State party has argued, and this has not been contested by the author, that married and unmarried couples are still subject to different sets of laws and regulations. The Committee observes that the decision to enter into a legal status by marriage, which provides under Dutch law for certain benefits and for certain duties and responsibilities, lies entirely with the cohabitating persons. By choosing not to enter into marriage, the author has not, in law, assumed the full extent of the duties and responsibilities incumbent on married persons. Consequently, the author does not receive the full benefits provided for by law to married persons. The Committee finds that this differentiation does not constitute discrimination within the meaning of article 26 of the Covenant.

12.       The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it do not disclose a violation of article 26 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.]

APPENDIX

Individual opinion by Elizabeth Evatt

(concurring)

            While accepting the Committee's decision in this matter, I would like to emphasise that the State party has accepted that cohabitees are to be considered as a family unit for some purposes. This factor needs to be taken into account in examining whether the grounds put forward for maintaining the distinction between married couples and cohabitees are reasonable and objective in regard to the benefit in question. In that regard, I do not find the arguments of the State party based on the legal consequences of marriage or inheritance law to be convincing or of particular relevance in regard to the granting of a benefit designed to alleviate, on a temporary basis the loss of a partner by death. For distinctions between different family groups to be regarded as reasonable and objective, they should be coherent and have regard to social reality.

(signed) Elizabeth Evatt

[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.]

        F. Communication No. 610/1995, Henry v. Jamaica

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

Submitted by:                                   Nicholas Henry

(represented by Mr. S. Lehrfreund from Simons Muirhead and Burton)

Victim:                                             The author

State party:                                       Jamaica

Date of communication:                   14 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.610/1995 submitted to the Human Rights Committee by Mr. Nicholas Henry, 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

1.1       The author of the communication is Mr. Nicholas Henry, a Jamaican citizen, at the time of submission awaiting execution in St. Catherine District Prison, Jamaica. He claims to be a victim of a violation by Jamaica of articles 6, 7, 10 and 14 of the International Covenant on Civil and Political Rights. He is represented by Mr. Saul Lehrfreund of Simons Muirhead & Burton, a law firm in London.

1.2       The author's offence was classified as non-capital following the Offences against the Person (Amendment) Act 1992. He is to serve 20 years' imprisonment before becoming eligible for parole.

The facts as submitted by the author

2.1       On 2 March 1988, at the Circuit Court Division of the Gun Court, the author, together with a co-accused, was convicted for the murder of three policemen and sentenced to death. The Court of Appeal, on 2 March 1989, refused his application for leave to appeal. On 10 November 1993, the Judicial Committee of the Privy Council dismissed his petition for special leave to appeal. It is submitted that herewith all domestic remedies have been exhausted. In this context, it is argued that the constitutional remedy, which exists in theory, is not available to the author in practice, because of his lack of funds and the unavailability of legal aid. Reference is made to the Committee's jurisprudence in this matter.

2.2       At the trial, the case for the prosecution was that, on 19 November 1986, a number of armed men attacked Olympic Police Station and killed three of the five policemen present. The author was accused of being an accessory to the murder in that he had assisted the members of the group in making molotov cocktails, had lied to a constable about their intention, had learned from the others that they intended to attack the police station, had received the members of the group at his house, and had assisted in hiding a large number of weapons after the event. The evidence against the author was based on a statement he had given to the police after having been cautioned and on testimony from a police officer who had spoken with the author the night before the raid. The author's statement to the police was admitted into evidence by the judge after a voir dire.

2.3       The author's defense was one of duress. He gave an unsworn statement from the dock, in which he stated that he had assisted the group of men out of fear for repercussions, that he had not been present during the attack on the police station, and that he had signed the statement to the police because he was told that it could do no harm.

The complaint

3.1       The author claims that he is a victim of a violation of articles 7 and 10, paragraph 1, of the Covenant, since he was beaten and maltreated by the police upon his arrest at his home on 20 November 1986. In particular, he claims that he was forced to eat hot dumplings from the cooking pot, which caused burns and bleeding in his mouth. The author submits that he signed the statement at the police station because he hoped to receive medical treatment. Although he was given some ice, he received no medical treatment and he states that he could not eat anything for months. He claims that he can still not eat any hot food. He also claims that he still suffers from neck pains as a consequence of the beatings.

3.2       The author also claims that he has a medical problem with his testicles since 1988. Despite requests, prison authorities refuse to take him to the hospital. In the beginning of 1992, he saw a doctor, who stated that surgery was necessary and who gave an approximate date of April 1992 for the operation. Despite this, and despite several requests made by the author and his representatives (copies of correspondence are enclosed), the author was never hospitalised and still has not received any medical treatment for his condition. The lack of medical treatment is said to amount to a violation of articles 7 and 10, paragraph 1, of the Covenant. In this context, reference is made to the UN Standard Minimum Rules for the Treatment of Prisoners and to the UN Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment.

3.3       It is further alleged that the author was subjected to ill-treatment on 4 May 1993. On that date, a search was carried out by warders and soldiers during which the author was assaulted by a soldier with a metal detector on his testicles. The author complained to the prison authorities and the Jamaica Council for Human Rights took a statement from him. The author's London counsel requested, on 3 September 1993, the Parliamentary Ombudsman to conduct an urgent investigation into the allegation of ill-treatment. The Ombudsman sent an investigator to the prison, and submitted a report to the Superintendent, who promised to make arrangements for medical treatment. The author claims that no such treatment was ever received.

3.4       It is submitted that the author has made all reasonable efforts to seek redress in respect of the ill-treatment suffered in detention, that, due to the author's lack of funds and the unavailability of legal aid, constitutional redress is not an available remedy, and that therefore the author fulfils the requirements of article 5, paragraph 2 (b), of the Optional Protocol. In this context, it is stated that the author has been subjected to threats ever since his complaint against his ill-treatment, and that he fears reprisals.

3.5       The author further submits that he has been held on death row since his conviction in March 1988, that is for over six years. It is submitted that the 'agony of suspense' resulting from such a long wait and expected death, amounts to cruel, inhuman and degrading treatment. In this context, the author refers to the Privy Council's judgment of 2 November 1993 in the case of Pratt & Morgan.

3.6       The author further alleges that he is a victim of a violation of article 14, paragraphs 1 and 2, of the Covenant. He refers to the Committee's prior jurisprudence and submits that the judge's summing-up at his trial did not meet the requirements of impartiality and in effect amounted to a denial of justice. In this connection, the author contends that the language used by the judge in directing the jury was so emotive that it excited sympathy for the victims and prejudice for the accused, weakened the judge's warnings to the jury to be impartial and undermined the directions to the jury on the burden and standard of proof.

3.7       The author also alleges that his legal aid lawyer did not properly defend him. In this context, the author claims that the police sent a little boy to take out guns from the cellar under the house next to him. He submits that no guns were found in his yard. He states that he told the lawyer to take a statement from the boy, but that he never                       did. He also indicates that the lawyer did not use the statements which the police had taken from his mother and common-law wife. The author argues that article 14, paragraph 3 (d), entitles an accused to effective legal assistance. In this context, it is also submitted that no witnesses were called on the author's behalf. The author claims therefore that his lawyer did not act diligently nor provided effective representation, in violation of article 14, paragraph 3 (d).

3.8       It is further submitted that a different lawyer represented the author at the preliminary hearings and that he met the lawyer who represented him at the trial only on the first day of the trial. Upon request, the judge granted an adjournment of the trial until the next day. The lawyer then came to visit the author in prison that evening and the trial started the following day. It is argued that one day to prepare the defence in a capital murder case is highly insufficient and constitutes a violation of article 14, paragraph 3 (b). In this context, it is argued that, if the lawyer would have been given more time to prepare the defence, he would have been able to call witnesses on the author's behalf or to take statements from them.

State party's observations and author's comments

4.1       By note of 15 March 1995, the State party submits its observations on the merits of the communication, in order to expedite its examination.

4.2       With regard to the author's allegations that he was denied medical attention and that he was ill treated in prison on 4 May 1993, the State party promises to investigate his allegations and to inform the Committee of the outcome of the investigations.

4.3       Concerning the author's claims under article 14 (1) and 14 (2), in relation to the summing-up by the judge, the State party argues that these are matters outside the Committee's jurisdiction and refers to the Committee's jurisprudence in this respect. The State party points out that the appellate courts already examined the judge's summing-up.

4.4       The State party does not accept that there were breaches of article 14 (3) (b) and (d) for which it is responsible. In respect of the claim that the author did not have adequate time to prepare his defence, the State party notes that counsel applied for and received an adjournment. If he would have required more time it was open to him to apply for it. With regard to the conduct of the defence, the State party submits that it is its duty to provide competent legal aid counsel and not to interfere with the conduct of the defence. The State party argues that it is not responsible for the manner in which counsel conducts his case and for any errors of judgement which he may or may not have made.

5.1       In his comments, counsel agrees to an examination of the merits of the communication.

5.2       With regard to the judge's summing-up, counsel submits that if it is clear that the instructions were manifestly arbitrary or amounted to a denial of justice, or that the judge otherwise violated her obligation of impartiality, the matter can be brought within the jurisdiction of the Committee. In this context, counsel refers to the Committee's jurisprudence . Counsel argues that the judge's summing up did not meet the standards of impartiality and amounted to a denial of justice.

5.3       With regard to the conduct of the trial, counsel concedes that the shortcomings of privately retained lawyers cannot be attributed to the State party, but argues that this does not apply to legal aid lawyers, who once assigned must provide effective representation.

5.4       In a further submission, counsel refers to an incident in prison following a protest by inmates concerning the perceived reduction of their visits on 28 February 1995. A day later, on 1 March 1995, the warders allegedly came to the death row section and started beating up inmates. The author was told to come out of his cell, and was beaten by the warders. He was also thrown down the stairs. As a result, his head got busted in two places, as well as his elbow. His ears were cut up, and he suffered a ringing in his ears. His hands were hurting and his fingers were swollen. He passed blood in his urine and his ribs on one side hurt so much that he could not touch them. The author states that his wounds were dressed at the surgery, and that he was given a pain killer which he did not take. He states that he was in a lot of pain. After he and other inmates began a hunger strike, the Commissioner of Prisons told the warders to take the author to the hospital. Instead, a doctor came to see the author in prison and told him that his ribs were not fractured, but that his lung was damaged. He was prescribed medication. After three days, the warders allegedly changed this to another pill, which the author did not take. It is submitted that the ill-treatment and the subsequent denial of proper medical attention are in violation of articles 7 and 10 of the Covenant.

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       With regard to the author's claim concerning the summing-up by the trial judge, 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 review the instructions to the jury by the trial judge, unless it can be ascertained that they were manifestly arbitrary or amounted to a denial of justice. The material before the Committee does not show that the summing-up 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.

6.4       The Committee notes that the State party has forwarded comments on the merits of the communication and that counsel has agreed to an examination of the merits at this stage. The Committee considers the remaining claims of the communication admissible and proceeds, without further delay, to an examination of their substance 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 alleged violation of articles 7 and 10, paragraph 1, of the Covenant, because the author was maltreated by the police upon his arrest, the Committee notes that the issue was subject of a voir dire and that it was before the jury during the trial, that the jury rejected the author's allegations, and that the matter was not raised on appeal. The Committee finds that the information before it does not justify the finding of a violation of articles 7 and 10, paragraph 1, of the Covenant in this respect.

7.2       The author has claimed that his detention on death row in itself constitutes a violation of article 7 of the Covenant. The Committee reaffirms its constant jurisprudence that detention on death row for a specific period - in this case for over seven years - does not violate the Covenant in the absence of further compelling circumstances.

7.3       Mr. Henry also alleges that he has suffered lack of medical treatment despite a recommendation from a doctor that he be operated. The author has further submitted detailed claims that he was beaten by soldiers and warders on 4 May 1993 and again on 1 March 1995. The author's claims have not been refuted by the State party, which has promised to investigate but has not communicated the results of its investigation, even though more than three years have passed since. The Committee recalls that a State party is under the obligation to investigate seriously allegations of violations of the Covenant made under the Optional Protocol. In the absence of any explanation by the State party, due weight must be given to the author's allegations. The Committee considers that the lack of medical treatment is in violation of article 10 of the Covenant, and that the beatings which the author suffered constitute violations of article 7 of the Covenant.

7.4       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 call witnesses for the defence. 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 (d) and (e), in this respect.

7.5       The author has also claimed that he did not have enough time to prepare his defence, since he met his lawyer only on the first day of the trial. In this context, the Committee reiterates its jurisprudence that the right of an accused person to have adequate time and facilities for the preparation of his defence is an important aspect of the principle of equality of arms. Where a capital sentence may be pronounced on the accused, sufficient time must be granted to the accused and his counsel to prepare the defence. The determination of what constitutes 'adequate time' requires an assessment of the individual circumstances of each case. The Committee notes from the information before it that the author's lawyer requested an adjournment of one day at the beginning of the trial and that this request was granted. The material before the Committee does not reveal that either counsel or the author ever complained to the trial judge that the time for preparation of the defence was inadequate. If counsel or the author felt inadequately prepared, it was incumbent upon them to request an adjournment. In the circumstances, there is no basis for finding a violation of article 14, paragraph 3 (b).

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 and 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 Mr. Nicholas Henry with an effective remedy, including immediate medical examination and treatment if necessary, compensation, and consideration of early release. 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.]

           G. Communication No. 613/1995, Leehong v. Jamaica

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

Submitted by:                                   Anthony Leehong

(represented by Ronald McHugh of Clifford Chance, London)

Alleged victim:                                The author

State party:                                       Jamaica

Date of communication:                   5 January 1995 (initial submission)

Date of decision on

admissibility:                                   16 October 1996

            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. 613/1995 submitted to the Human Rights Committee by Anthony Leehong, 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 Anthony Leehong, a Jamaican citizen who at the time of submission communication was awaiting execution at St. Catherine's 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 Mr. Ronald McHugh of the London law firm of Clifford Chance. The author's death sentence has been commuted.

The facts as submitted by the author

2.1       A warrant for the author's arrest was issued on 5 December 1988. On 20 December 1988, while walking down a street, the author was shot from behind by the police, without any warning. The author was brought to Kingston Public Hospital by two passers-by. On 22 December 1988, while in hospital, the author was allegedly told by the police that he was under arrest for the murder of a police man which had taken place in early December 1988. He remained in hospital, under police guard, until 29 December 1988; he was then taken to the Central Lock-Up in Kingston, allegedly still in connection with the murder of the policeman and to stand an identification parade in this respect. On 31 March 1989, the author and another person were brought before the Magistrates Division of the Gun Court in connection with the murder of the policeman; this charge was dropped. The author states that the investigating officer did not recognize him. In this respect, he points out that the officer asked the co-accused whether he was Anthony Leehong; after receiving a negative reply, the officer told the author and the examining magistrate that he had obtained a warrant for the author's arrest and that in the hospital he had charged the author with the murder of one Carlos Wiggan. The author states that only then did he learn that he had been arrested and charged for the murder of Carlos Wiggan.

2.2       On 21 February 1990, after 13 minutes of deliberation, the jury returned a verdict of guilty. The author was sentenced to death. On 28 January 1991, the Court of Appeal dismissed his application for leave to appeal. A further petition for special leave to appeal to the Judicial Committee of the Privy Council was dismissed on 7 February 1994. With this, it is submitted, all domestic remedies have been exhausted. On 13 November 1994, the author's offence was reclassified as non-capital under the Jamaican Offences Against the Person (Amendment) Act 1992. His death sentence has been commuted to life imprisonment, serving a minimum of 20 years before being eligible for parole.

2.3       The preliminary enquiry before the Gun Court relating to the murder of Carlos Wiggan started on 20 June 1989. The author was represented by a legal aid attorney. This attorney, however, did not attend the second hearing held on 11 July 1989, when the arresting officer gave his deposition; the author was unrepresented during this hearing. The attorney was present at the third hearing held on 13 September 1989. During these hearings, eye-witnesses identified the author as the assailant of Carlos Wiggan; no prior identification parade had been held.

2.4       Subsequently, the author's mother succeeded in obtaining the services of another lawyer. The trial was scheduled to start on 19 February 1990, but was adjourned until 21 February 1990, in order for the author's lawyer to prepare the case. The author met his lawyer on two occasions for a period of between two and four hours in all.

2.5       The case for the prosecution was that, in the morning of 4 December 1988, in the Parish of St. Andrew, the author killed Carlos Wiggan with two gunshots. The author claims to be innocent and that he was at home during the time of the crime.

2.6       At the trial, the prosecution relied on the testimony of the deceased's stepfather, his mother and his sister. The stepfather of the deceased testified that on 4 December 1988, at about 9:30 a.m., he heard an explosion. When he looked out of the window, he saw a person whom he knew by the name of Peter, and whom he identified as being the author, running after Carlos Wiggan, and shooting him twice. Firing further shots, the author ran away, together with another person.

2.7       The mother of the deceased testified that, on the morning of the incident, she looked down from the balcony and saw her son standing against a wall with the author holding a gun in front of him. She also noticed two other men standing nearby. She then saw the author shooting at her son, who tried to escape. As the persons moved, she could not observe what happened; she could only hear shots. When she came out of the house, she saw her son lying on the ground. She stated that she had the author in sight for two to three minutes and that she had never seen him before.

2.8       The deceased's sister testified, that she saw the author, whom she had known for two years, shooting at her brother, and then chasing him. She then heard other gunshots and saw the author leaving the premises, without a gun.

2.9       The author's defence claimed that the three witnesses for the prosecution had mistakenly identified the author. The author himself, in an unsworn statement, denied that he was called Peter or that he had killed the deceased. No witnesses were called on behalf of the defence.

The complaint

3.1       Counsel submits that the manner in which the police apprehended the author, by shooting him from behind without giving an order to stop or a warning, was in breach of article 9, paragraph 1. In this context, he submits that the author was unarmed and that he did not pose any threat to the police or to the public.

3.2       The author claims violations of articles 9, paragraph 2, and 14, paragraph 3(a), since he only learned that he had been arrested and charged for the murder of Carlos Wiggan on 31 March 1989, when he was taken before the examining magistrate. He claims that on 22 December 1988, in the hospital, he was not aware of having been arrested and charged with the murder of which he was convicted, and that he was not given a copy of the warrant or the charge sheet. Furthermore, the author does not recall whether he was cautioned. Counsel argues that, if the author was informed at all, it was done in circumstances in which he could not understand what was going on. Counsel adds that he, as well as the Jamaica Council for Human Rights have requested information from the Kingston Public Hospital about the author's physical condition at the time of his arrest, but that no reply has been received to date.

3.3       The author points out that he was not brought before a judge until three months after his arrest, and then it was in relation to the murder of a policeman, the author was not charged for that murder. However, he was then charged and remanded into custody for the murder of Wiggan. It was another 3 months before he was brought before a judge with respect to this second murder of which he was subsequently convicted. He submits that this constitutes a violation of article 9, paragraph 3, of the Covenant. In this context, reference is made to the Committee's jurisprudence, where it was held that a delay of 6 weeks from arrest to appearance before a judge amounted to a violation of article 9.

3.4       The author further points out that the trial against him did not start until 21 February 1990. He claims that a delay of 14 months between arrest and trial amounts to a violation of article 9, paragraph 3. Moreover, it is submitted that the author should have been released from detention, while awaiting trial.

3.5       The author claims that he was not given adequate time and facilities for the preparation of his defence, in violation of article 14, paragraph 3(b). As to the preliminary examination, he claims that he saw his legal aid attorney for the first time at the first hearing, that no witnesses were called on his behalf, and that the attorney did not attend the second hearing, as a result of which no cross-examination of the arresting officer took place. As to the trial, the author claims that his privately retained lawyer failed to properly cross-examine the witnesses against him, due to lack of preparation. In this context, it is submitted that there were serious discrepancies between the testimonies of the prosecution's witnesses. This is said to constitute a violation of article 14, paragraph 3(e), of the Covenant.

3.6       As to a violation of the author's rights under article 14, paragraph 1, 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 (Turnball guidelines), and that this amounted to a denial of justice. In particular, it is said that the judge did not properly point out the danger of relying on visual identification evidence, nor to the weaknesses in the evidence. It is further submitted that the judge's instructions reversed the burden of proof. This is said to amount to a violation of article 14, paragraph 2.

3.7       It is further contended that the author's right to a review of his conviction and sentence by the Court of Appeal was not in accordance with article 14, paragraphs 3(d) and 5. Counsel explains that the author's lawyer (who had also represented him at trial) indicated before the Court of Appeal that there was no merit in the appeal, without having consulted the author. From the notice to appeal, it transpires that the author did not wish to be present in Court when his appeal was considered. Furthermore, counsel claims the author was not informed that his appeal was being heard, and consequently did not have the opportunity to instruct his lawyer. It is stated that, had the author been aware that his lawyer saw no merits in the case and was not going to argue any grounds on his behalf, thereby effectively withdrawing the appeal, he would have changed his legal representation.

3.8       It is further submitted that the delays in the various stages of the judicial proceedings against the author, and in particular the delay in obtaining the court documents necessary for the preparation of a petition for special leave to appeal to the Judicial Committee of the Privy Council, amounted to a violation of article 14, paragraph 3(c). In this context, counsel states that he first requested copies of the court documents on 27 June 1991; the trial transcript and the Court of Appeal's judgement were only received in February 1992, after numerous requests to the Jamaican judicial authorities by counsel and the Jamaica Council for Human Rights. The depositions made during the preliminary hearings in the author's case were finally received on 24 August 1992.

3.9       The author gives a detailed description of acts of ill-treatment to which he has been allegedly subjected to at St. Catherine District Prison. Reportedly, on 17 November 1991, he was denied food and water. The day after, he was struck with batons; he received death threats from warders on several occasions. He states that he is denied medical treatment and visitors. The author's counsel wrote several times to the Parliamentary Ombudsman on behalf of his client. On 8 February and 6 April 1994, the Office of the Parliamentary Ombudsman replied mistakenly that the author had been discharged from prison. According to counsel, this demonstrates the superficial nature of the Ombudsman's investigations. After counsel had pointed out that the author was still incarcerated and remained the subject of ill-treatment, the Ombudsman replied that the warder responsible in the case had been transferred. Nevertheless, it is submitted that the threats and violence against the author continue. Furthermore, on five occasions counsel wrote letters to the Commissioner of Corrections, who, on 27 October 1994, merely informed him that a new superintendent had been appointed to the prison, without addressing any of the specific complaints raised on behalf of the author. On 7 October 1994, counsel was informed by the Ombudsman that its recent representations on behalf of the author had been referred for investigation to the Director of Investigations and that a report would be received soon. No such report has been received to date.

3.10 Reference is made to documentary evidence of the inhuman conditions of detention at St. Catherine District Prison, in particular as to the hygienic and sanitary conditions.

3.11 The author concludes that the maltreatment he has been - and is being - subjected to at St. Catherine District Prison, and his present conditions of incarceration amount to violations of articles 7, 10, paragraph 1, and 17 of the Covenant. He emphasizes that the conditions of imprisonment are seriously undermining his health. While on death row, he has only been allowed to see a doctor once, despite having sustained beatings by warders and having requested medical attention.

3.12 With reference to recent decisions of various judicial instances dealing with the death row phenomenon, it is submitted that to execute the author after the prolonged period of time he has been detained on death row would amount to cruel, inhuman or degrading treatment, in violation of article 7 of the Covenant.

State party's information and observations on admissibility and the

author's comments thereon

4.         On 10 January 1995, the communication was transmitted to the State party, requesting it to submit to the Committee information and observations in respect of the question of admissibility of the communication. No reply was received. On 31 January 1995, the State party informed the Committee that the offence for which the author had been convicted had been classified as non-capital and that the author was no longer on death row.

5.         On 24 January 1995, counsel informed the Committee that the author's death sentence had been commuted.

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       The Committee noted with concern the absence of cooperation 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 by article 5, paragraph 2(b) of the Optional Protocol from considering the communication.

6.4       The Committee considered that, in the absence of information provided by the State party, the author had sufficiently substantiated for the purposes of admissibility, his claim that he was shot before his arrest and the ill-treatment he had been subjected to while at St. Catherine District Prison. This part of the communication might raise issues under articles 7, 9, paragraph 1 and 10 paragraph 1, of the Covenant which need to be examined on the merits. Counsel had alleged a violation of article 17 of the Covenant with no further substantiation.

6.5       With regard to the author's claim that the length of his detention on death row amounts to a violation of article 7 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 article 7 the Covenant, in the absence of some further compelling circumstances.

6.6       With regard to the author's claim that he was not tried without undue delay in violation of articles 9, paragraph 3 and 14, paragraph 3 (c), the Committee considered that a delay of 14 months could not be construed as being unreasonable. Consequently, the Committee found that in this respect the author had no claim under article 2 of the Optional Protocol.

6.7       With regard to the author's claim that he was not tried without undue delay in violation of article 14, paragraph 3 (c), because of the delay in obtaining the court documents, by counsel in London, the records show that the trial transcript was available to the author (or his counsel) when the appeal was heard. It also transpires from the trial transcript that the preliminary depositions made by the witnesses were also available to the author (or his counsel) during the trial, as evidenced by the cross examination which took place. The Committee considered that the author's counsel had not substantiated this claim for purposes of admissibility. Consequently, this part of the communication was inadmissible under article 2 of the Optional Protocol.

6.8       As to the author's claims under article 9, paragraphs 1 and 2 and 14, paragraph 3 (a) of the Covenant, in that the author was not informed of the reasons for his arrest, the Committee considered that in the absence of information from the State party, the author and his counsel had sufficiently substantiated this claim for purposes of admissibility. Accordingly, the Committee considered that this part of the communication should be examined on the merits. It invited counsel to provide the Committee with more precise information regarding the original crime, i.e. the murder of the policeman, and its outcome; the incident, of 20 December 1988, in which the author was shot and subsequently arrested. The Committee invited the State party to provide it with a detailed chronology of the events in the author's case.

6.9       The author had alleged that he was not brought before a judge until three months after his arrest and it was 6 months before he was brought before a judge in connection with the crime for which he was finally convicted. The Committee found that in the absence of a reply, in this respect, from the State party, the author and his counsel had sufficiently substantiated this allegation for purposes of admissibility, and it should be examined on the merits.

6.10 As regards the author's complaint that he was not properly represented during his trial in violation of article 14 paragraph 3 (b), and (e), the Committee considered that the State party could not be held accountable for alleged errors made by a defence lawyer, unless it was manifest to the judge that the lawyer's behaviour was incompatible with the interest of justice. In the instant case, there was no reason to believe that counsel was not using other than his best judgement and this part of the communication is therefore inadmissible under article 2 of the Optional Protocol.

6.11 As regards the author's claim that he was not properly represented by his counsel on appeal in violation of article 14, paragraph 3 (d), the Committee noted from the information before it that counsel did in fact consult with the author prior to the hearing, and that at the hearing the court of appeal examined the case. The Committee considered that it was not for the Committee to question counsel's professional judgement as to how to argue or not the appeal, unless it is manifest that his behaviour was incompatible with the interests of justice. The Committee recalled that article 14, paragraph 3 (d), does not entitle the accused to choose counsel provided to him free of charge. The Committee found therefore that, in this respect, the author has no claim under article 2 of the Optional Protocol.

6.12 The author's remaining allegations concerned claims about irregularities in the court proceedings and improper instructions from the judge to the jury on the issue of identification. The Committee reiterated 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, but rather to the contrary, the Court of Appeal judgement expressly stated that the trial judge's instructions had been: "clear, fair and adequate". Accordingly, this part of the communication was inadmissible as incompatible with the provisions of the Covenant, pursuant to article 3 of the Optional Protocol.

6.13 Consequently on 16 October 1996 the Human Rights Committee declared that the communication was admissible inasmuch as it appeared to raise issues under articles 7 and 10, paragraph 1 in respect of the ill-treatment and articles 9, paragraphs 1, 2 and 3; and 14, paragraph 3 (a), of the Covenant.

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

7.1       In a submission dated 17 December 1997, the State party informed the Committee it would investigate the author's allegations of ill-treatment in prison.

7.2       With regard to the alleged breach of article 9, paragraph 1, due to the circumstances under which the author was arrested, shot by police from behind, the State party has promised to have the allegation investigated. However, it requested that counsel provide additional information in respect of the incident: whether the author had been detained during a joint police operation? whether there was an exchange of gun-fire between the police and the other parties? It further states that these questions do not in anyway constitute an acknowledgement that there was any breach of this article.

7.3       With respect to the claims under articles 9, paragraph 2, and 14, paragraph 3 (a), in that the author was not promptly informed of the charges against him, the State party contends that the allegations are confusing: "In paragraph 7 of the [original] communication it is stated that a warrant for his arrest was executed on the author on December 22 1988. In paragraph 31 the author states that he was not aware of the warrant being executed on him. In the same breath, the applicant admits that he was told that he had been arrested and the nature of the offence. This was confirmed by the author's mother. Therefore, the author cannot honestly say that he was unaware of the charges against him until he came to trial."

7.4       The State party further denies any breach of the Covenant in respect of article 9, paragraph 3 of the Covenant since the author was brought before a magistrate prior to the holding of the preliminary enquiry.

8.1       By submission dated 8 April 1998, counsel provided a memorandum with a chronology of events as known to the defence, where the claims, that the author had been shot from behind when arrested and that he was not aware of the charges against him are reiterated.

8.2       In a further submission dated 29 June 1998, counsel looks forward to receiving the State party's information in respect of the circumstances of the author's arrest, his ill-treatment at St. Catherine's District Prison and the chronology of events leading to the author's arrest as requested by Committee in its admissibility decision. He refers the State party to his submission of April 1998 in order to respond to the State party's questions in the note verbale of 17 December 1997.

8.3       With regard to the State party's challenge of a violation of articles 9, paragraph 2 and 14 paragraph 3 (a) in that the author was not promptly informed of the charges against him counsel reiterates that the author was not aware at the time of his arrest on 22 December 1988, of the charges against him. In particular, he claims that the Jamaican police did not inform the author of the fact of, or the reasons for his arrest but merely notified him that he would have to take part in an identification parade. The author was finally made aware of the charges against him only on 31 March 1989, over three months after his violent apprehension. Counsel points out that the State party has not addressed the fact that the charges made against the author on 22 December were dropped and that it was not until 31 March 1989 that he was told that he was being charged with the murder (of Mr. Wiggan) for which he was later tried.

8.4       As regards the violation of article 9, paragraph 3, counsel reiterates his original claim. He notes that the author was arrested on 22 December 1988, for the murder of a policeman, brought before a magistrate on 31 March, and charged at that time with the murder of Mr. Wiggan. The charges against him for the policeman's murder were dropped for lack of evidence. The preliminary hearing for the murder of Carlos Wiggan was held on 20 June 1989. Counsel holds that the author was brought before a judge in connection with the crime for which he was finally convicted of, only after a 6-month delay.

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       With regard to the author's complaints of ill-treatment while in detention at St. Catherine's District Prison, the Committee notes that author has made very precise allegations, relating to the incidents referred to in paragraph 3.11 supra. These allegations have not been contested by the State party, except to say that it would investigate. There is no information from the State party as to whether an investigation has been carried out and if so, what its result has been, contrary to its obligation to cooperate with the Committee as required by article 4, paragraph 2 of the Optional Protocol. In the Committee's opinion, the ill-treatment and conditions described 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 the right not to be subjected to cruel, inhuman or degrading treatment, and are therefore contrary to articles 7, and 10, paragraph 1.

9.3       With respect to the author's claim that he was shot by the police from behind before being arrested, the Committee reiterates its jurisprudence where it has held that it is insufficient for the State party to simply say that there has been no breach of the Covenant. Consequently, the Committee finds that in the circumstances the State party not having provided any evidence in respect of the investigation it alleges to have carried out the shooting remains uncontested and due weight must be given to the author's allegations. Accordingly, the Committee finds that there has been a violation of article 9, paragraph 1, with respect to the author's right to security of the person.

9.4       The author has claimed a violation of articles 9, paragraph 2, and 14, paragraph 3(a), since he was not informed of the charges against him at the time of his arrest. After a police officer was killed, the author was charged and arrested. Later after an investigation, the original charge was dropped for lack of evidence, but it appears that the author was the suspect of another murder and was kept in detention before being charged and sentenced for the second crime. In the circumstance of the case and on the basis of the information before it, the Committee finds that there has been no violation of the articles 9, paragraph 2, and 14, paragraph 3, of the Covenant.

9.5       The author has claimed a violation of article 9, paragraph 3, in as much as he was not brought before a magistrate after his arrest on 22 December 1988. It was only on 31 March 1989 that he was brought before the Magistrates Division of the Gun Court. There was thus a delay of more than three months before he was produced before a judicial authority. The Committee notes that the State party has admitted the delay of more than 3 months between the date of arrest and the date he was brought before a judicial authority, but has offered no explanation for this delay and merely contended that there has been no violation of the Covenant. The Committee is of the view that mere assertion that the delay does not constitute a violation is not sufficient explanation. The Committee therefore finds that 3 months to bring an accused before a magistrate does not comply with the minimum guarantees required by the Covenant. Consequently, and in the circumstance of the case the Committee finds that there has been a violation of article 9, paragraph 3 of the Covenant.

10.       The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of articles 7, 10, paragraph 1, 9, paragraphs 1, and 3, 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. Leehong 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. 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.]

          H. Communication No. 614/1995, Thomas v. Jamaica

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

Submitted by:                                   Samuel Thomas (represented by Mr. Jan Cohen of Mishcon de Reya)