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1. The authors of the
communication are Errol Gentles, Lorenzo Kerr and Dennis Douglas, three
Jamaican citizens awaiting execution at St. Catherine District Prison,
Jamaica. They claim to be victims of violations of their human rights by the
Government of Jamaica. They are represented by counsel.
2.1 The authors were charged with the murder, on 30 August 1980 in the
Parish of Clarendon, of one Howard Campbell. They were tried in the
Clarendon District Court, found guilty as charged and sentenced to death on
10 April 1981. On 14 April 1983, the Jamaican Court of Appeal dismissed
their appeal. A petition for special leave to appeal to the Judicial
Committee of the Privy Council was dismissed on 6 October 1988.
2.2 According to the authors, Howard Campbell was sitting on a bench by the
roadside in the village of Woodside, Clarendon, when a van with armed men
passed through the village. These men, together with two motor cyclists,
began to molest and attack the villagers. The prosecution contended that the
raiders had acted with intention to kill. In particular, they caught the
deceased, beat and stabbed him to death. Furthermore, as the attack occurred
during the campaign for a general election, it was suggested that it could
have had political overtones.
2.3 The authors denied having taken part in the raid and testified that they
had been elsewhere when the crime occurred. In particular, Mr. Gentles'
uncle supported his alibi defence, testifying that he had been home with him
at the time in question. The authors claim that no identification parade was
held following their arrest. In this connection, Lorenzo Kerr and Errol
Gentles claimed, in their petition for special leave to appeal to the Privy
Council, that identification evidence was central to their case: they
alleged that three police constables who testified during the trial were
invited by the prosecution to identify them from the dock; this, however,
happened seven months after the murder. Thus, the principal ground of appeal
was that the judge, in his summingup to the jury, misdirected the jurors on
the issue of identification evidence and permissibility of dock
identification, and that he erred in not pointing out the dangers inherent
in such method of identification. Moreover, they argued that the judge, in
reviewing the identification evidence, did not remind the jury that, during
the preliminary inquiry, one of the constables who testified against them
had not stated that he had seen the authors stabbing the deceased.
2.4 The Court of Appeal, when dealing with the issue of identification
evidence, rejected the authors' argument and observed: "In our view, the
learned trial judge in directing the jury on the dangers inherent in visual
identification had in mind R. v. Whylie (27 W.I.R.). The language of the
directions is the language of that case". The authors object to this
reasoning and contend that the dangers inherent in dock identification are
recognized by the courts in most Commonwealth countries.
2.5 For Mr. Dennis Douglas, it is claimed that the judge erred in not
putting the issue of manslaughter to the jury. Without an alternative
manslaughter verdict to consider, the jury was bound to convict him of
murder after rejecting his alibi defence.
2.6 In a further submission from the authors, dated 11 August 1989, it is
stated that the authors were victims of a miscarriage of justice, in that
the police did not place them on an identification parade. It is further
submitted that they did not have an opportunity to consult with their
court-appointed lawyers.
The complaint:
3. Although the authors do not invoke any of the provisions of the
International Covenant on Civil and Political Rights, it appears from their
submissions that they claim to be victims of a violation by Jamaica of
article 14 of the Covenant.
4.1 Counsel's submission of 10 February 1993 contains several fresh
allegations which the Human Rights Committee is precluded from considering,
since they were formulated after the Committee, on 15 March 1990, declared
the communication admissible in so far as it appeared to raise issues under
article 14, paragraphs 3(b) and (d) and 5, of the Covenant.
4.2 With regard to a violation of article 14, paragraphs 3(b) and (d),
counsel submits that each author was denied adequate legal representation
for their trial in that: all three were represented by the same junior
counsel, Mr. J.H., and leading counsel, Mr. N.E. QC; junior counsel was also
representing the fourth codefendant in the same trial; until the first day
of the trial N.E. and J.H., together with another attorney, were also
representing the fifth codefendant. Only prior to the empanelling of the
jury, this codefendant requested to be solely represented by the other
attorney.
4.3 Furthermore, the amount of time allocated to each of the authors for the
preparation of the trial is said to have been insufficient for them and
their representatives to prepare the defence in any meaningful way.
Sufficient time was particularly important as the trial involved the
preparation of complex crossexamination on the issue of identification.
Moreover, the preparation of the authors' defence is said to have been
prejudiced by the State party's failure to provide them or their legal
representatives with the prosecution statements at a sufficiently early
stage before the trial, or at all.
Thus, with regard to Dennis Douglas' case, it is submitted that he only met
with junior counsel on two occasions prior to the trial. During the first
meeting in prison, the author was allegedly denied privacy and therefore
could not adequately instruct counsel. Leading counsel attended only the
second meeting which took place immediately prior to the preliminaryhearing
on 16 October 1989, and which lasted 20 minutes. The only other opportunity
to give instructions and discuss the case with his legal representatives
took place at the court for 5 minutes each day during the trial, before the
hearing started. It is further submitted that Mr. Douglas was first made
aware of the prosecution case against him during the preliminary enquiry,
some 5 months after his arrest, and that it is not clear whether he was ever
shown or asked to comment on the prosecution statements prior to the trial.
Lorenzo Kerr submits that, although counsel promised to try to obtain the
prosecution statements, he was never shown or asked to comment on them prior
to the trial.
As to Errol Gentles' case, it is submitted that he first met with counsel at
the preliminary enquiry, for a brief interview, and that he then first
learned of the prosecution case against him. He had no further meetings with
either leading or junior counsel prior to the trial. It is further submitted
that it is unclear whether he was ever shown or asked to comment on the
prosecution statements prior to the trial.
4.4 Counsel concludes that the fact that one leading and one junior counsel
(who initially represented five codefendants) were assigned to represent all
three authors prejudiced their case, since their instructions could not be
adequately taken prior to and during the trial, nor could their cases be
adequately presented.
4.5 As to the preparation of the appeal to the Jamaican Court of Appeal, it
is submitted that the authors were not granted any privacy when consulting
their legal representatives, and that the consultations were limited to 20
minutes.
4.6 Finally, counsel submits that the State party's failure to make legal
aid available to the authors to pursue a constitutional motion under
Sections 20 and 25 of the Jamaican Constitution, amounts to a violation of
article 14, paragraph 5, of the Covenant. In this context, reference is made
to para. 8.4 of the Committee's Views in Raphael Henry (Communication No.
230/1987), where the Committee found that the words "according to law" in
article 14, paragraph 5, mean that if domestic law provides for further
instances of appeal, the convicted person must have effective access to each
of them.
The State party's admissibility observations and the authors' comments
thereon:
5.1 In its submission of 20 July 1989, the State party contends that the
communication is inadmissible on the ground of non-exhaustion of domestic
remedies, as required by article 5, paragraph 2(b), of the Optional
Protocol. Although the authors' petitions for leave to appeal to the
Judicial Committee of the Privy Council have been dismissed, the authors
could still avail themselves of constitutional remedies.
5.2 In his comments, counsel denies that constitutional remedies remain open
to his clients and submits that the authors cannot afford to retain a lawyer
for the purposes of a constitutional motion. Furthermore, there is no
provision in the Poor Prisoners' Defence Act for legal aid for that
particular purpose; the Jamaica Council for Human Rights had
madeconsiderable but unsuccessful efforts to retain lawyers on a pro bono
basis. Counsel contends that if a constitutional remedy is theoretically
available to the authors, in practice this is not the case.
The Committee's admissibility decision:
6.1 During its 38th session in March 1990, the Committee considered the
admissibility of the communication. It took note of the State party's
contention that the communication was inadmissible because of the authors'
failure to pursue constitutional remedies. In the circumstances of the case,
the Committee considered that recourse to the Constitutional Court under
Section 25 of the Jamaican Constitution was not a remedy available to the
authors within the meaning of article 5, paragraph 2(b), of the Optional
Protocol.
6.2 The Committee further considered that some of the authors' allegations
pertained to the issue of the adequacy of the judge's instructions to the
jury, in particular to the issue of the treatment of identification evidence
and the possibility of a manslaughter verdict. The Committee reiterated that
it is, in principle, beyond its competence to review specific instructions
to the jury by the judge, unless it can be ascertained that the instructions
to the jury were clearly arbitrary or amounted to a denial of justice, or
that the judge clearly violated his obligation of impartiality. In the
circumstances, the Committee found that the judge's instructions did not
suffer from such defects.
6.3 On 15 March 1990, the Committee declared the communication admissible in
respect of article 14, paragraphs 3(b) and (d) and 5, of the Covenant.
The State party's objections to the admissibility decision and counsel's
comments thereon:
7.1 In a submission of 6 February 1991, the State party requests the
Committee to review its decision on admissibility.
7.2 The State party submits that nothing in the Optional Protocol or in
customary international law supports the contention that an individual is
relieved of the obligation to exhaust domestic remedies on the mere ground
that there is no provision for legal aid and that his indigence has
prevented him from resorting to an available remedy. It is submitted that
the Covenant only imposes a duty to provide legal aid in respect of criminal
offences (article 14, paragraph 3(d)). Moreover, international conventions
dealing with economic, social and cultural rights do not impose an
unqualified obligation on States to implement such rights: article 2 of the
International Covenant on Economic, Social and Cultural Rights provides for
the progressive realization of economic rights and relates to the "capacity
of implementation of States". In the circumstances, the State party argues
that it is incorrect to infer from the authors' indigence and the absence of
legal aid for constitutional motions that the remedy is necessarily
nonexistent or unavailable.
8.1 In his submission of 10 February 1993, counsel comments on the State
party's request for review of the admissibility decision, pointing out that
the authors were arrested in 1980, tried and convicted in 1981, and that the
Jamaican Court of Appeal dismissed their appeal in 1983. It is submitted
that a further appeal to the Supreme (Constitutional) Court would, in the
circumstances of the case, entail an unreasonable prolongation of the
application of domestic remedies.
8.2 Counsel further submits that a constitutional motion in the Supreme
(Constitutional) Court of Jamaica would fail, in the light of the precedent
set by the Judicial Committee's decisions in DPP v. Nasaralla FN1, where it
was held that the Jamaican Constitution was intended to prevent the
enactment of unjust laws and not merely unjust treatment under the law.
-------------------------------------------------------------------------------------------------------------------------------[FN1]
[1967] 2 ALL ER 161.] and Riley et al. v. Attorney General of Jamaica [
[1982] 3 AL ER 469.
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8.3 As to the State party's contention that nothing in the Optional Protocol
or in customary international law supports the contention that a person is
relieved of the obligation to exhaust local remedies on the ground that
there is no provision for legal aid and that his indigence has prevented him
from utilising an available remedy, it is submitted that such requirement
must be deemed to exist:
(a) particularly in countries where indigence and poverty are common, and
where those who can afford legal representation are few and far between;
(b) to do otherwise would make the provisions relating to the exhaustion of
domestic remedies empty and meaningless. It cannot have been the intention
of those who drafted the Optional Protocol that a State party can claim
nonexhaustion where such is mainly attributable to that State party's
failure to provide the author with the financial means to do so;
(c) to decide otherwise would make article 2 of the Covenant meaningless.
Pursuant to that article, State parties undertake to guarantee the rights in
the Covenant "without distinction of any kind, such as ... property ... or
another status". To effectively limit the constitutional remedies to those
who can afford the legal fees would be incompatible with the wording of the
provision and the rights which the Covenant seeks to secure "without
distinction of any kind";
Reconsideration of admissibility issues and examination of the merits:
9.1 The Committee has taken note of the State party's request to review its
decision on admissibility, as well as its criticism of the reasoning leading
to the decision of 15 March 1990. It takes the opportunity to explain its
admissibility findings.
9.2 The Committee notes that the Supreme Court of Jamaica has, in recent
cases, allowed applications for constitutional redress in respect of
breaches of fundamental rights, after the criminal appeals in these cases
had been dismissed. However, it also notes that, in the instant case as well
as in other cases FN2, the State party indicates that legal aid is not
provided for constitutional motions, and that it has no obligation under the
Covenant to make legal aid available in respect of such motions, as they do
not involve the determination of a criminal charge, as required under
article 14, paragraph 3(d), of the Covenant. In the view of the Committee,
this supports the finding, made in its decision on admissibility, that a
constitutional motion is not an available remedy for an author who has no
means of his own to pursue it. In this context, the Committee observes that
the authors do not claim that they are absolved from pursuing constitutional
remedies because of their indigence; rather it is the State party's
unwillingness or inability to provide legal aid for the purpose that renders
the remedy one that need not be pursued for purposes of the Optional
Protocol. As to the State party's argument that international conventions
dealing with economic, social and cultural rights do not impose an
unqualified obligation on States to implement such rights, the Committee
observes that the question of whether remedies remain available to the
author within the meaning of article 5, paragraph 2(b), of the Optional
Protocol is entirely distinct from and has no bearing on the issue of
progressive realization of economic, social and cultural rights.
-------------------------------------------------------------------------------------------------------------------------------[FN2]
See e.g. Committee's Views in communication No. 283/1988 ( Aston Little v.
Jamaica ), adopted on 1 November 1991, at its 43th
session. -------------------------------------------------------------------------------------------------------------------------------
9.3 The Committee further observes that the authors were arrested in 1980,
tried and convicted in 1981, and that their appeal was dismissed in 1983.
The Committee deems that for purposes of article 5, paragraph 2(b), of the
Optional Protocol, the pursuit of constitutional remedies would, in the
circumstances of the case, entail an unreasonable prolongation of the
application of domestic remedies. Accordingly, there is no reason to revise
the decision on admissibility of 15 March 1990.
10.1 The Committee notes with regret the absence of cooperation from the
State party, which has not made any submission on the substance of the
matters under consideration. It is implicit in article 4, paragraph 2, of
the Optional Protocol, that a State party make available to the Committee
all the information at its disposal; this is so even where the State party
objects to the admissibility of the communication and requests the Committee
to review its admissibility decision, as requests for a review of
admissibility are examined by the Committee in the context of the
consideration of the merits of a case, pursuant to rule 93, paragraph 4, of
the rules of procedure.
10.2 The Committee takes the opportunity to also express concern about the
fact that counsel, in spite of two reminders, submitted his comments on the
State party's submission two years after its receipt and only substantiated
the claims almost three years after the adoption of the decision on
admissibility. Paragraph 8(d) of the Committee's decision on admissibility
in the case provides that: "Any explanations or statements received from the
State party shall be communicated [...] to the authors and their counsel
[...] with the request that any comments that they may wish to submit
thereon should reach the Human RightsCommittee [...] within six weeks of the
date of the transmittal". While the submission of any comments is left to
the discretion of the authors and their counsel, the Committee considers
that any author or counsel who wishes to substantiate his/her claims or
wishes to comment on a State party's submission, should do so in a timely
manner so as to enable the Committee to conclude its examination in an
appropriately expeditious way.
11.1 In respect of the authors' claims under article 14, paragraphs 3(b) and
(d), 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 a corollary of the
principle of equality of arms. The determination of what constitutes
"adequate time" depends on an assessment of the particular circumstances of
each case. The material before the Committee discloses that neither leading
or junior counsel, nor the authors complained to the trial judge that the
time or facilities for the preparation of the defence had been inadequate.
The Committee notes that if the authors or counsel had felt that they were
improperly prepared, it would have been incumbent upon them to request an
adjournment of the trial. Moreover, the Committee cannot conclude, on the
basis of the available material, that the authors' representatives were
unable to adequately represent them, nor that they displayed lack of
professional judgment in the conduct of the defence of their clients. The
same is true for the appeal. The written judgment of the Court of Appeal
reveals that each of the authors was represented before the Court by
different counsel, and there is no evidence that their lawyers were unable
to properly prepare the cases for the appeal. The Committee therefore finds
no violation of article 14, paragraphs 3(b) and (d).
11.2 It remains for the Committee to decide whether the failure of the State
party to make legal aid available to the authors for purposes of a
constitutional motion violated their rights under article 14, paragraph 5,
of the Covenant. Article 14, paragraph 5, guarantees the right of convicted
persons to have the conviction and sentence reviewed "by a higher tribunal
according to law". In this context, the authors claim that, because of the
nonavailability of legal aid, they are denied effective access to the
Supreme (Constitutional) Court of Jamaica. In its previous jurisprudence
[FN3], the Committee had examined the question whether article 14, paragraph
5, guarantees the right to a single appeal to a higher tribunal or whether
it guarantees the possibility of further appeals when these are provided for
by the law of the State concerned. It observed that the Covenant does not
require States parties to provide for several instances of appeal. It found,
however, that the words "according to law" in article 14, paragraph 5, must
be understood to mean that, if domestic law provides for further instances
of appeal, the convicted person should have effective access to each of
them. The Committee observes that, in the instant case, the State party
provided the authors with the necessary legal prerequisites for an appeal of
the criminal conviction and sentence to the Court of Appeal and to the
Judicial Committee of the Privy Council. It further observes that Jamaican
law also provides for the possibility of recourse to the Constitutional
Court, which is not, as such, a part of the criminal appeal process. Thus,
the Committee finds that the availability of legal aid for constitutional
motions is not required under article 14, paragraph 5, of the Covenant.
Accordingly, the Committee concludes that the authors' rights under this
provision were not violated.
-------------------------------------------------------------------------------------------------------------------------------[FN3]
Communication No. 230/1987, para. 8.4.
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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 the Committee do not disclose
any violation of the provisions of the Covenant. |
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