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1. The author of the
communication is Junior Leslie, a Jamaican citizen who, at the time of
submission of his complaint, was awaiting execution at St. Catherine
District Prison, Jamaica. He claims to be a victim of violations by Jamaica
of articles 7; 10, paragraph 1; and 14, paragraphs 1 and 3(a) to (e), of the
International Covenant on Civil and Political Rights. He is represented by
counsel. The author's death sentence was commuted to life imprisonment in
early 1995.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 On 14 November 1987, the author was arrested by two policemen after a
dispute concerning a bicycle. He was taken to the Hunts Bay Police Station
and held in custody for five days. On 20 November 1987, he was taken to the
Kingston Gun Court for a preliminary hearing; only then did he learn that he
was charged, together with one Anthony Finn [FN1] and one L.T., with the
murders, on 8 November 1987, of one Merceline Morris and her son, Dalton
Brown. On 4 April 1990, the author and Anthony Finn were found guilty as
charged and sentenced to death by the Home Circuit Court in Kingston; L.T.
was acquitted on the direction of the trial judge at the close of the
prosecution's case. The author's appeal to the Court of Appeal was dismissed
on 15 July 1991; a further petition for special leave to appeal to the
Judicial Committee of the Privy Council was dismissed on 6 October 1992.
With this, it is submitted, all domestic remedies have been exhausted. On 17
December 1992, the author's case was classified as a capital case under the
Offences against the Person (Amendment) Act 1992.
-------------------------------------------------------------------------------------------------------------------------------[FN1]
Mr. Finn's Communication No. 617/1995 is before the Human Rights Committee;
it has not yet been considered on the question of admissibility.
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2.2 The prosecution relied on the testimony of the deceased's daughter
[respectively sister], Carol Brown, and grandson [respectively nephew],
Orlando Campbell. Carol Brown testified that, on 8 November 1987 at about
8:00 p.m., her mother and Orlando Campbell were inside the house; she
herself was sitting at the doorway and her brother, Dalton Brown, was in the
yard with a friend, one C. The yard was lit up by a 100 watt light bulb on
the exterior wall and by lights from within the house. Suddenly two armed
men, whom she identified as Anthony Finn and the author, entered the yard.
Immediately thereafter she heard explosions and she ran away. She stopped
two houses further along, heard several more explosions, and saw C. running
past her, followed by the author and Anthony Finn, who were still holding
guns. Her mother, covered with blood, ran towards her, and told her that her
brother had been shot. Her mother and brother died in hospital. Carol Brown
testified that she had known Anthony Finn for about eight years. With
respect to the author, she stated that she had first seen him one week prior
to the incident, when he was pointed out to her as one of the persons
involved in the beating and stabbing of her brother two weeks earlier. She
only knew him by his nickname "Kentucky".
2.3 Orlando Campbell testified that, on the night of the incident, he was in
bed when he saw his uncle, Dalton Brown, followed by Anthony Finn, running
into the house. His uncle held on to his grandmother, who tried to block
Anthony Finn. He then saw Anthony Finn shooting his grandmother. Having
turned his face to the wall, he then heard Anthony Finn calling his uncle,
followed by several explosions, and he heard his uncle begging for mercy.
More shooting, from different directions, followed and he then heard Anthony
Finn talking to another person. Orlando Campbell testified that he saw
Anthony Finn, whom he knew, leaving through the gate, followed by a short
stout person whose face he could not see, and by L.T., whom he also knew.
2.4 The medical evidence confirmed that the victims had been shot and died
as a result of shotgun injuries.
2.5 No identification parade was held in the case; during the trial, i.e. 29
months after the murders, Carol Brown identified the author from the dock.
2.6 The author presented an alibi defence. He testified at the trial, that
he had spent the evening watching a video show at a community centre near
his home. He stated that he only spoke with one person that evening, but
that he could not remember that person's name. He further stated that two
other men in the area where he lived were known by the nickname "Kentucky".
THE COMPLAINT
3.1 With regard to articles 7 and 10, paragraph 1, of the Covenant, counsel
forwards a statement taken from the author at St. Catherine District Prison
on 28 January 1993. This states that, on 15 November 1987, while held at the
Hunts Bay Police Station, the author was hit on the chest by the
investigating officer (name given). Furthermore, the author claims that,
throughout his detention at Hunts Bay Police Station (from 14 to 20 November
1987), he was held in a cell measuring 2 by 4 metres together with five to
six other persons. He was not allowed to wash himself and was only permitted
to leave the cell in order to fetch drinking water. He was further denied
recreational facilities.
3.2 On 20 November 1987, the author was transferred to the General
Penitentiary, Kingston; upon arrival, he was allegedly hit on his left arm,
near the wrist, by one of the warders. It is submitted that because he had
previously broken his left wrist, this blow caused him great pain. He
remained at the General Penitentiary until 4 April 1990; throughout this
period, he had to share a cell of approximately 1.50 by 3 metres with four
to five other prisoners. Furthermore, on an unspecified day, the author was
stabbed in the face by an inmate which caused a deep cut of about 1 cm,
stretching from his left ear down to his left cheek, and about 10 cm long.
He immediately requested medical care but had to wait two hours before he
was taken to a doctor. He received twenty stitches, but was denied follow up
medical treatment. He submits that, during the following three days, he
suffered much pain but that he was denied pain killers.
3.3 After his conviction on 4 April 1990, the author was transferred to the
death row section at St. Catherine District Prison, where he has been
detained since. The author explains that, at this prison, inmates are
generally allowed to leave their cells sometime between 9:30 a.m. and 10:30
a.m. and are returned sometime between 12:00 p.m. and 12:20 p.m They are
again let out of their cells between 2:00 p.m. and 4:00 p.m. The author
suffered several assaults while in prison:
- On 1 December 1991, for example, the prisoners were not allowed out of
their cells in the morning. Shortly after 1:00 p.m., inmates were given a
brief opportunity to slop up their cells. The two warders on duty in the
block where the author was detained were Sergeant G. and a young man. The
author states that, as the two warders opened the cells adjacent tho his but
not his own, he started to protest. They entered his cell and the young
warder allegedly punched him in the left side of the head. Both warders then
proceeded to kick and hit him with their batons on his back, chest, arms,
legs and knees, for approximately two minutes. The author submits that he
experienced extreme pain during this assault and that all his cries were
disregarded. After the beating he was left without food or water, nor did he
receive medical treatment.
- On 2 December 1991 at about 10:00 a.m., the author was given ten minutes
to slop up. Sometime after 2:00 p.m. Sergeant G. came to his cell with six
or seven other warders, and he was told to slop up once again. However,
before he could do so, he was told to return to his cell. On his way back to
the cell, Sergeant G. and another warder started to beat him. He fell to the
floor and both warders hit him repeatedly with their batons on his arms,
feet and back for about ninety seconds, while other warders watched. He was
then thrown into his cell and left without food or water until the following
morning. The author submits that he was denied access to a doctor or any
sort of medical treatment.
3.4 The author reported these assaults to the Prison Authorities and
repeatedly requested medical attention, to no avail. He then wrote to the
Prison Ombudsman; as a result, he was finally taken to hospital in early
1992. The doctor who treated him prescribed pain killers. On the sequels of
the beatings, the author notes that: "There is a specific pain in the left
part of my back which has never completely disappeared. It feels as if there
is a broken bone or that a bone is cracked. I experience the pain
particularly badly in the morning when I wake up. All my requests to see a
doctor again have been in vain and the warders simply give me pain tablets
[...]".
3.5 The author further states that on several occasions warders told him
that there was no point in providing him with medical treatment, because he
was about to be executed. He submits that this caused him"great
embarrassment and depression". Furthermore, on three occasions he was not
allowed out of his for an entire day, and was given no food or water. Thus,
he remained confined to his cell from around 4:00 p.m. until 10:00 a.m. two
days later. The author characterizes the situation as "extremely
discomforting and humiliating".
3.6 By letter of 9 June 1993, the author submits that, on 5 June 1993 at
12:28 p.m., he was harassed by a warder, one M., reportedly because he had
complained to the Ombudsman and to "the Human Rights Office" about the
treatment by warders. M. allegedly hit the author on his knee with a baton,
and when the author held on the baton, M. drew a knife. He alleges that M.
was about to use the knife but that it fell from his hand. The author then
reported the incident to the officer-in-charge of the Section, who referred
him to the Prison Superintendent; the latter allegedly refused to see him.
The author further alleges that, on 4 May 1993, a warder stuck a finger in
his eye and that he was kicked several times as he lay on the floor. The
same warder subjected him to further physical and verbal abuse on 23, 24, 29
and 30 September 1993. On 30 September the author's room was searched and
200 dollars removed, which have not been returned.
3.7 Counsel refers to the records of a meeting held on 25 January 1993 with
the author's local lawyer. This lawyer observed that Mr. Leslie displayed a
number of new cuts and bruises on his face which he had not recalled from
his first meeting in 1989. The lawyer suspected that this was the result of
treatment in prison, which is not uncommon in Jamaica. Counsel submits that
this lawyer's observations corroborate all the allegations made by the
author in his statement and letters. Counsel, on behalf of Mr. Leslie, has
lodged formal complaints with the Prison Superintendent on 30 November 1993,
and with the Jamaican Commissioner of Prisons on 14 March 1994.
3.8 Counsel adduces documentary evidence of the inhuman conditions of
detention at the General Penitentiary and St. Catherine District Prison. It
is submitted that the lack of recreational, rehabilitation and other
facilities in these prisons clearly indicates that they fall far short of
the U.N. Standard Minimum Rules for the Treatment of Prisoners, and that the
lack of provision for the basic needs for Junior Leslie amounts toa
violation of both articles 7 and 10, paragraph 1. He concludes that the lack
of washing facilities in custody, the crowded conditions under which Mr.
Leslie was detained, the long periods of confinement, the lack of medical
treatment, the reasons given for the denial of such treatment, and the
unprovoked assaults by the police officer and prison warders to which Mr.
Leslie was subjected, amount to violations of articles 7 and 10, paragraph
1.
3.9 It is further alleged that the author did not have a fair trial. He
complains that his legal aid counsel failed to adequately prepare the case.
In this respect he claims that he met his lawyer for the first time on one
of the twelve occasions on which his trial was adjourned. Although the
attorney visited him several times in prison, a policeman was always
present, which afforded no privacy. Only the adjournment and new dates for
the trial were discussed, never the defence arguments. This is said to
violate article 14, paragraph 3(b).
3.10 In respect of the alleged violation of article 14, paragraphs 1 and 3
(e), it is submitted that due to lack of time and facilities for the
preparation of the defence, a number of witnesses were not called to testify
on the author's behalf. The author's defence was further prejudiced by the
fact that junior counsel, who had been assigned to the author's attorney to
assist him with the case and on whom the attorney relied for all the
groundwork, fell ill shortly before the start of the trial, and could
therefore not attend. Furthermore, the trial judge's alleged "obstructive
behaviour" prevented the defence from adequately cross-examining the
prosecution witnesses on the "short and stout" issue. [FN2] Counsel concedes
that, in principle, it is not for the Committee to review specific
instructions given by the judge to the jury, unless it can be ascertained
that these instructions were clearly arbitrary or amounted to a denial of
justice. In this context, he refers to the summing-up and submits numerous
examples of the judge's instructions which are said to amount to a denial of
justice. [FN3]
------------------------------------------------------------------------------------------------------------------------------[FN2]
A close examination of the trial transcript reveals that there is no basis
for this allegation.
[FN3] Most of the grounds of appeal relied on by counsel were dismissed by
the Court of Appeal.
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3.11 As to the adequacy of the author's representation during the trial, it
is submitted that prosecution witnesses wee not adequately cross-examined,
or at all. Counsel points out that the author's attorney arrived late at the
afternoon session of the hearing of 3 April 1990, when the pathologist gave
evidence in connection with the wounds suffered by the deceased. The
attorney did not cross-examine this witness, whose evidence, according to
counsel, could have undermined Carol Brown's evidence that her brother had
been beaten and stabbed two weeks prior to his death. The lawyer's failure
to question the pathologist is said to be particularly serious, in light of
the fact that a friend of the deceased's family, who identified the bodies,
testified in court that he was not aware that Dalton Brown had been beaten
and stabbed.
3.12 Furthermore, counsel argues that Carol Brown's identification evidence,
given to the police on the night of the incident, was uncorroborated, as
Orlando Campbell did not identify Mr. Leslie and the third eye-witness, C.,
did not testify. FN4 Counsel notes that the author was never placed on an
identification parade, and that it was only 29 months later that he was
identified in court by Carol Brown. It is submitted that the delay of 29
months from arrest to trial amounts to a violation of article 14, paragraph
3(c), and that the judge, by allowing a dock identification and by failing
to warn the jury about the effects the delay might have on the credibility
and reliability of the prosecution witnesses, violated the author's right to
a fair trial.
-------------------------------------------------------------------------------------------------------------------------------[FN4]
This witness could not be located by the police.
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3.13 The author alleges that since he was assigned the same attorney for the
appeal, his right to legal assistance of his own choosing was violated. He
did not meet with the attorney prior to the hearing of the appeal, and was
given no opportunity to discuss the grounds of appeal to be argued on his
behalf. Furthermore, he claims that he was not asked whether he wished to
attend the hearing and that he only learned from the prison authorities that
his appeal had been dismissed.
THE STATE PARTY'S INFORMATION AND OBSERVATIONS ON ADMISSIBILITY AND THE
AUTHOR'S COMMENTS THEREON
4. In its submission under rule 91, the State party argues that the
communication is inadmissible under article 5, paragraph 2(b), of the
Optional Protocol, because the author has failed to exhaust domestic
remedies. It notes that the author may still apply for constitutional
redress; in this context, it notes that the rights invoked by the author and
protected by article 14, paragraphs 1, 3(b) and (e) are coterminous with
Sections 20 (1), 20 (6) (b) and 20 (6) (d) of the Jamaican Constitution.
Pursuant to Section 25 of the Constitution, it is open to the author to seek
redress for the alleged violations of his rights by way of a constitutional
motion to the Supreme Court.
5. In his comments, dated 21 April 1995, counsel states that, since legal
aid is not made available for constitutional motions, a constitutional
motion does not constitute an effective remedy in the case.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its procedure, decide
whether or not it is admissible under the Optional Protocol to the Covenant.
6.2 The Committee takes note of the State party's argument that the pursuit
of a constitutional remedy is still open to the author. It observes that the
Supreme Court of Jamaica has, in some cases, allowed applications for
constitutional redress in respect of breaches of fundamental rights, after
the criminal appeals in these cases had been dismissed. However, it also
recalls that the State party has indicated on several occasions FN5 that no
legal aid is made available for constitutional motions. The Committee
considers that in the absence of legal aid, on which the author, who is
indigent, must rely, a constitutional motion does not constitute a remedy
which must be exhausted for the purposes of the Optional Protocol. The
Committee therefore considers that it is not precluded by article 5,
paragraph 2(b), from considering the communication.
-------------------------------------------------------------------------------------------------------------------------------[FN5]
See e.g. communications No. 283/1988 (Austin Little v. Jamaica), Views
adopted on 1 November 1991; No. 321/1988 (Maurice Thomas v. Jamaica), Views
adopted on 19 October 1993; No. 352/1989 (Douglas, Gentles and Kerr v.
Jamaica), Views adopted on 19 October 1993.
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6.3 As to the claims under articles 7 and 10 paragraph (1), the Committee
notes that the author brought the repeated instances of ill-treatment to the
attention of the prison authorities and the Commissioner of Prisons. As no
reply or follow-up was given to his complaints, the Committee considers
that, in this respect, the author has met the requirements of article 5,
paragraph (2) (b), of the Optional Protocol. It finds that the author's
claims about ill-treatment in prison and death row have been sufficiently
substantiated and should be examined on the merits.
6.4 The Committee further considers that the author has sufficiently
substantiated his claim, under article 14, paragraph 3 (c), that he was not
tried without undue delay. This relates in particular to the State party's
failure to place the author on an identification parade at the time of his
arrest, combined with a lapse of time of two and a half years before a dock
identification was made during the trial, by a single witness who was a
close relative (daughter and sister respectively) of the two deceased. This
allegation, accordingly should be examined on the merits.
6.5 The author's remaining allegations concern claims about irregularities
in the court proceedings, improper instructions from the judge to the jury
on the issue of identification, the late arrival in Court of the attorney
and the lack of cross examination of the prosecution witnesses. The
Committee reiterates that, while article 14 guarantees the right to a fair
trial, it is not for the Committee to review specific instructions to the
jury by the judge in a trial by jury, unless it can be ascertained that the
instructions to the jury were clearly arbitrary or amounted to denial of
justice, or that the judge manifestly violated his obligation of
impartiality. The material before the Committee does not show that the
judge's instructions suffered from such defects. Accordingly, this part of
the communication is inadmissible as incompatible with the provisions of the
Covenant, pursuant to article 3 of the Optional Protocol.
7. The Human Rights Committee therefore decides:
(a) that the communication is admissible in as much as it appears to raise
issues under articles 7; 10 paragraph 1; and 14, paragraph 3(b) (c), (d) and
(e), of the Covenant;
(b) that, in accordance with article 4, paragraph 2, of the Optional
Protocol, the State party shall be requested to submit to the Committee,
within six months of the date of the transmittal to it of this decision,
written explanations or statements clarifying the matter and the measures,
if any, that may have been taken by it;
(c) that any explanations or statements received from the State party shall
be communicated by the Secretary-General under rule 93, paragraph 3, of the
rules of procedure to the author, with the request that any comments which
he may wish to make should reach the Human Rights Committee, in care of the
Centre for Human Rights, United Nations Office in Geneva, within six weeks
of the date of the transmittal;
(d) that this decision shall be communicated to the State party and to the
author and to his counsel. |
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