|
1. The author of the
communication is Trevor Collins, a Jamaican citizen awaiting execution at
St. Catherine District Prison, Spanish Town, Jamaica. He claims to be a
victim of violations by Jamaica of article 14, paragraphs 2 and 3 (b) to
(e), of the International Covenant on Civil and Political Rights. He is
represented by counsel.
Facts as submitted
2.1 The author was accused, jointly with a co-defendant, Paul Kelly, [FN1]
of the murder, on 2 July 1981, of one O. V. Jamieson. His trial took place
in the Westmoreland Circuit Court from 9 to 15 February 1983; he and Mr.
Kelly were found guilty as charged and sentenced to death. On 23 February
1983, the author appealed to the Court of Appeal of Jamaica. On 28 April
1986 the Court of Appeal, treating the application for leave to appeal as
the hearing of the appeal itself, dismissed the appeal. The Court of Appeal
did not issue a reasoned judgement but merely an oral judgement. Because of
the absence of a reasoned appeal judgement, the author has not petitioned
the Judicial Committee of the Privy Council for special leave to appeal.
-------------------------------------------------------------------------------------------------------------------------------
[FN1] The Committee adopted its views on Mr. Kelly's communication on 8
April 1991, finding violations of articles 6, 9, 10 and 14 of the Covenant,
and requested the State party to release Mr. Kelly; see communication No.
253/1987.
-------------------------------------------------------------------------------------------------------------------------------
2.2 The body of the deceased was discovered on 2 July 1981 in bushes near
the road of Lennox Bigwoods. The previous day, the author and Mr. Kelly had
sold a cow to one Basil Miller. The prosecution contended that the cow had
been stolen from Mr. Jamieson, who had visited Mr. Miller's home in the
evening of 1 July 1981 and identified the cow as his property. The accused
allegedly ambushed Mr. Jamieson on his way home and beat him to death, as
they believed that he had obtained from Mr. Miller the receipt implicating
them in the theft of the cow. The author then allegedly threw his
blood-stained clothes into a latrine next to his home and went to Kingston.
Mr. Collins contests this version of the facts; he argues that he had
obtained the cow from one Alvin Spence, and that he and his co-defendant
arrived in Kingston several hours before the crime was committed.
2.3 The author notes that there were no witnesses to the crime, nor any
forensic evidence which would have linked him to the deceased. Accordingly,
the prosecution relied on circumstantial evidence, i.e. the blood-stained
clothes found close to the author's home, the presence of a motive and the
testimony of Mr. Kelly's sister and the author's brother, which conflicted
with the version put forward by the accused. It further relied on
confessions allegedly obtained from the accused upon their arrest; although
the latter contended that the confessions were made under duress, the judge
ruled them admissible. The author's appeal to the Court of Appeal was filed
on the following grounds: (a) that the trial was unfair; (b) that there was
insufficient evidence to warrant a conviction and (c) that the prosecution's
evidence was contradictory.
Complaint
3.1 The author submits that the delay of over three years in the
determination of his appeal by the Jamaican Court of Appeal violates his
right, under article 14, paragraph 3 (c), to be tried "without undue delay".
He further claims that he was effectively unrepresented before the Court of
Appeal, as his court-appointed representative merely stated that he found no
merits in arguing the appeal.
3.2 It is submitted that the author's trial in the Westmoreland Circuit
Court violated article 14, paragraph 3 (b), (d) and (e) and, as a result,
the presumption of innocence of article 14, paragraph 2. In this context,
counsel points out that the trial transcript reveals that no witnesses were
called on the author's behalf although he had asked for witnesses to be
called, that no evidence was adduced either in support of his alibi that he
had left Westmoreland for Kingston several hours before the crime, nor in
support of the claim that the cow Mr. Collins had sold to Basil Miller had
been given to him by Mr. Spence. These points are said to indicate that the
author's representation during the trial was seriously deficient. Counsel
adds that legal aid provided by the State party is such that it is all but
impossible for any defendant's case to be properly prepared and/or for
witnesses to be traced, as would be appropriate in a capital case.
3.3 With respect to the requirement of exhaustion of domestic remedies, the
author notes that senior counsel instructed on his behalf advised there were
no grounds upon which a petition for special leave to appeal to the Judicial
Committee of the Privy Council could justifiably be filed. He had further
suggested that the Jamaican Constitutional Court and the Court of Appeal
would consider themselves bound by the decision of the Judicial Committee of
the Privy Council in the case of Riley et al. v. Attorney General of
Jamaica, and that no decision in the case could be taken unless and until a
petition to the Judicial Committee were allowed or decided upon.
Accordingly, the process of exhaustion of domestic remedies under the
Jamaican Constitution and, thereafter, to the Judicial Committee would take
several years. Counsel thus concludes that available and effective remedies
have been exhausted. He adds that the application of domestic remedies has
already been unreasonably prolonged, as the author has been detained on
death row for close to 10 years.
State party's information and observations
4. The State party argues that the author retains the right, under Section
110 of the Jamaican Constitution, to petition the Judicial Committee of the
Privy Council for special leave to appeal. It adds that the rights protected
by article 14, paragraphs 2 and 3, are coterminous with those protected
under Section 20 of the Jamaican Constitution. Under Section 25, the author
could seek enforcement of his constitutional rights before the Supreme
(Constitutional) Court. The State party notes that the author has failed to
seek constitutional redress.
Committee's decision on admissibility and the State party's challenge
thereof
5.1 During the thirty-seventh session, the Committee considered the
admissibility of the communication. With respect to the requirement of
exhaustion of domestic remedies, it noted that the Court of Appeal of
Jamaica had not issued a written judgement in the case, the submission of
which to the Judicial Committee could be considered a prerequisite for a
petition for special leave to appeal to be entertained. In the
circumstances, counsel could objectively assume that any petition for leave
to appeal would fail, on account of the unavailability of a written
judgement from the Court of Appeal. The Committee recalled that domestic
remedies need not be exhausted if there are serious reasons for believing
that they have no real prospect of success. On the basis of the information
before it, it concluded that the requirements of article 5, paragraph 2 (b),
of the Optional Protocol had been met.
5.2 On 17 October 1989, accordingly, the Committee declared the
communication admissible.
6.1 In its submission under article 4, paragraph 2, of the Optional
Protocol, the State party challenges the Committee's findings and reiterates
that the author still has criminal remedies (before the Judicial Committee
of the Privy Council) and constitutional remedies (before the Constitutional
Court) which he is required to pursue. It adds that there are no grounds
which would relieve Mr. Collins from his obligation to pursue these
remedies, and that such delays as occurred in the proceedings cannot be
attributed to the judicial authorities. Accordingly, there is no basis for
the assertion that the application of domestic remedies has been
unreasonably prolonged.
6.2 Still in the context of exhaustion of domestic remedies, the State party
observes that the Privy Council Rules do not make a written judgement of the
Court of Appeal a prerequisite for a petition for special leave to appeal:
"Rule 4 provides that a petitioner for special leave to appeal lodge the
judgment from which special leave to appeal is sought. However, 'judgment'
is defined in Rule 1 as including 'decree, order, sentence or decision of
any court, judge or judicial officer'. Thus the order or decision of the
Court of Appeal in respect of a particular appeal, as distinct from the
written judgment, is a sufficient basis for a petition for special leave to
appeal to the Privy Council, and in practice the Privy Council has heard
appeals on the basis of the order or decision of the Court of Appeal
dismissing the appeal."
6.3 Finally, the State party contends that the facts relied upon by counsel
to substantiate the author's allegations under article 14, paragraphs 2 and
3, do not disclose any breaches attributable to the Government. To the
extent that the claims involve issues of evaluation of evidence, the State
party maintains that the Committee is not competent to consider those
issues.
Review of admissibility
7.1 The Committee has taken note of the State party's submission of 8 May
1990, which challenges the admissibility decision of 17 October 1989. It
takes the opportunity to expand on its admissibility findings. The State
party has argued that the Judicial Committee of the Privy Council may hear a
petition for special leave to appeal even in the absence of a written
judgement of the Court of Appeal; it bases itself on its interpretation of
Rule 4 juncto Rule 1 of the Privy Council's Rules of Procedure. While the
Judicial Committee's rules of procedure do not exclude this reasoning, it
fails to take into account that, for purposes of the Optional Protocol, a
judicial remedy must not only be available in theory but also be effective,
that is, have a reasonable prospect of success. It is true that the Judicial
Committee has heard several petitions concerning Jamaica in the absence of a
written judgement of the Court of Appeal, but, on the basis of the
information available to the Committee, all of these petitions were
dismissed because of the absence of such a judgement. In this respect,
therefore, there is no reason to reverse the Committee's admissibility
decision.
7.2 Similar considerations apply to the possibility of instituting
constitutional remedies before the Supreme (Constitutional) Court. This
issue has already been examined by the Committee in its views on
communications 230/1987 (Raphael Henry v. Jamaica) and 283/1988 (Aston
Little v. Jamaica). [FN2] In the circumstances of these communications, the
Committee concluded that a constitutional motion did not constitute an
available and effective remedy within the meaning of article 5, paragraph 2
(b), of the Optional Protocol.
-------------------------------------------------------------------------------------------------------------------------------
[FN2] Communication No. 230/1987, views adopted on 1 November 1991, paras.
7.1 to 7.5; communication No. 283/1988, views adopted on 1 November 1991,
paras. 7.1 to 7.6.
-------------------------------------------------------------------------------------------------------------------------------
7.3 The Committee further notes that the State party does not provide legal
aid for constitutional motions; as the author is unable to secure private
legal representation for this purpose, it concludes that such a motion would
not constitute a remedy which the author would be required to exhaust for
purposes of the Optional Protocol, and that there is no reason to reverse
the decision of 17 October 1989.
7.4 With regard to the author's contention that he was forced to confess his
guilt, contrary to article 14, paragraph 3 (g), of the Covenant, the
Committee notes that this claim was not submitted to the Committee until
almost three years after the Committee's decision to declare the
communication admissible. In the circumstances, the Committee does not admit
this claim for consideration on the merits.
Examination of the merits
8.1 In respect of the author's claims under article 14, paragraph 3 (b) and
(e), the Committee reiterates that the right of an accused person to have
adequate time and facilities for the preparation of his defence is an
important element of the guarantee of a fair trial and an important aspect
of the principle of equality of arms. Wherever a capital sentence may be
pronounced on the accused, it is imperative that sufficient time must be
granted to the accused and his counsel to prepare their defence. The
determination of what constitutes "adequate time" requires an assessment of
the individual circumstances of each case. The author also contends that he
could not obtain the attendance of witnesses. The material before the
Committee does not disclose, however, whether either counsel or the author
himself complained to the trial judge that the time or facilities for the
preparation of the defence had been inadequate. Furthermore, there is no
indication that counsel's decision not to call witnesses was not in the
exercise of his professional judgement, or that, if a request to call
witnesses was made, the judge disallowed it. Accordingly, there is no basis
for a finding of a violation of article 14, paragraph 3 (b) and (e).
8.2 As to the author's legal representation before the Court of Appeal, the
Committee reaffirms that it is axiomatic that legal assistance be made
available to a convicted prisoner under sentence of death. This applies to
all stages of the judicial proceedings. Counsel was entitled to recommend
that an appeal should not proceed. But if the author insisted upon the
appeal, counsel should have continued to represent him or, alternatively,
Mr. Collins should have had the opportunity to retain counsel at his own
expense. In this case, it is clear that legal assistance was assigned to Mr.
Collins for the appeal. What is at issue is whether counsel had a right to
effectively abandon the appeal without prior consultation with the author.
Counsel indeed opined that there was no merit in the appeal, thus
effectively leaving Mr. Collins without legal representation. While article
14, paragraph 3 (d), does not entitle the accused to choose counsel provided
to him free of charge, measures must be taken to ensure that counsel, once
assigned, provides effective representation in the interest of justice. This
includes consulting with, and informing, the accused if he intends to
withdraw an appeal or to argue, before the appellate instance, that the
appeal has no merit.
8.3 Finally, because of the absence of a written judgement of the Court of
Appeal, the author has been unable to effectively petition the Judicial
Committee of the Privy Council. This, in the Committee's opinion, entails a
violation of article 14, paragraph 3 (c), and article 14, paragraph 5. The
Committee reaffirms that in all cases, and especially in capital cases, the
accused is entitled to trial and appeal proceedings without undue delay,
whatever the outcome of the judicial proceedings may turn out to be. [FN3]
-------------------------------------------------------------------------------------------------------------------------------[FN3]
See views on communication No. 253/1987 (Paul Kelly v. Jamaica), adopted on
8 April 1991, para. 5.12.
-------------------------------------------------------------------------------------------------------------------------------
8.4 The Committee is of the opinion that the imposition of a sentence of
death upon the conclusion of a trial in which the provisions of the Covenant
have not been respected constitutes, if no further appeal against the
sentence is available, a violation of article 6 of the Covenant. As the
Committee noted in its General Comment 6 (16), the provision that a sentence
of death may be imposed only in accordance with the law and not contrary to
the provisions of the Covenant implies that "the procedural guarantees
therein prescribed must be observed, including the right to a fair hearing
by an independent tribunal, the presumption of innocence, the minimum
guarantees for the defence, and the right to review by a higher tribunal".
In the present case, while a petition for special leave to appeal is in
theory still available, it would not be an available remedy within the
meaning of article 5, paragraph 2 (b), of the Optional Protocol (see para.
7.1 above). Accordingly, it must be concluded that the final sentence of
death was passed without having met the requirements of article 14, and that
as a result, the right protected by article 6 of the Covenant has been
violated.
9. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, finds that the facts before it disclose violations of articles 6 and
14, paragraphs 3 (c), (d) and 5, of the Covenant.
10. The Committee is of the view that Mr. Trevor Collins is entitled to a
remedy entailing his release. It requests the State party to provide
information, within ninety days, on any relevant measures taken by the State
party in compliance with the Committee's views. |
|