CCPR/C/33/D/285/1988

l.~ Nith re.peet to th~ requlrement of exhau.tion of dome.tic remediel, the author Itate. that he appealed, on 12 November 1986, ta the Adminiltratieve Rechtlpraak Overheid.belehikkingen (AROB), the hi9he.t admini.tcotive Qr9an in th~ Netherlands, ar9uin9, inter a1io, that the lummon. wa. in violation of article 6 of the European Convention on Humon Ri~htl and that he wa. entitled, under .ectionl 285 and 269 of the Penal Code and under international treati••, to object to military lervice a9ainlt hi. will. By deci.ion of 31 December 1986, the Pr••ident o~ the Afdeling .echtspraak aaad van State (ARRS), the AROB Le9al Chamber, declared the appeal inadmie.ible on the 9found. that the law 90'8rning the procedure bftfore AROB did not provide for an appeal again.t order. or judgement. ba.ed on the Penal Code o~ the Code of Penal Procedure. By letter of 16 January 1°'7, the author intro~uced e,nother recour.e with the .ame Le9al Chamber of ARvB (which 11 po••ible under Netherland. law), claimin9 that he could not be con.idered an "accu.ed" pel80n within the m.aning of the Penal Code, but a defendant within the meanh:.g of the Civil Code. That would make an appeal pOllible. On 11 June 1987, the Legal Chamber of AROB di.mil.ed th. appeal. 3.1 Before conliderin9 any claim. contained in a communication, the Human Rights Committee mu.t, in accordance with rule 87 of it. provi.ional rule~ of procedure, decide whether or not it il a4mil8ible under the Optional Protocol to the Covenant. 3.2 The Committee note. that the author claim. that he iB a victim of dhcrimination on the ground. of "other atatuB" (Covenant, art. 261n fine) becau.e, being a .0ldier during the period of hi. military .ervice, he could not apVeal again.t a .wnmon. lite a civilian. The CommiLtee con8id~1'" howevur, that the Icope of application of artiCle 26 cannot be extended to cover situations such

a. the one encounteTed by the buthor. The Committee oblerves, as it did with relpect to cOlNnuni(lation No. 245/1987 (1L.....Xa......i. v. ~), that the Covenant doe. not preclude the inltltution of compul.ory military service by States partiea, even though this mean. that lome liahte of individual. may be restricted during military .ervice, within the e.igencies of such .ervice. The Committee note., in thi. connection, that the authoE has not claimed that the Netherlands military penal procedure. are not being applied equally to all Netherlands citizens .erving in the Netherland. armed force.. It therefore concludes that ti.e author has no cl4im under article 2 of the Optional Protocol. 4. The Human Right. Committee therefore decide.1 (a) That the communication i8 inadmi••iblel (b) That thi. decision Ihall be communicat~~ to the author and, for information, to the State party. L. Communication No. 285/, iBB. L. G. Y. Jamaica (Deci,ion adopted on 26 July 1988~~ thirtY-third .e••ioo) Subm1tted hyl L. G. [name deleted] A~leQed yicttml The author State party cop~erol41 Jamaica Datl of ~ommUQicAtiQnl 20 January 1988 (d~te of initial lettel) -272- ~.AD Right, :ommittee, e,tabli.hed under article 28 of the International Co~enant on Civil and Political Right., M~eting on 26 July 1988, Ada»t~ the followin~1 ~~ci.ia~ an aOrni.libility 1. The author of the communication (initial,ubmi.,ion dated 20 January 1988, further letter oated 3 June 1988) i' L. G., a Jamaican citi'en currently awaiting execution at St. Catherine Di.trict Pri.on, Jamaica. 2.1 L. G. state, that he was interroyated by the police at hi. home on the evening of 7 Octo~er 1985 in connection with the murder of Mr. T. M. The latter had been killed with a machete in the course of a robbery that occurred in the pari.h of Manover on 2 October 1985. over 150 mile. away from the author', home. The author expluined that, while he knew the victim from the period when he lived in Hanover. he had not vi.ited that town for a conliderable time and knew nothing about the crime. He was. however, arre.ted in c~nnection with the incident. On 25 October 1985, the author was put on an identification parade. where he was identifle~ by Ms. E. M•• whom he also knew. He wal subsequently charged with the murder of Mr. M., together with hi. brother, V. G•• who we. then livinq in Hanover. 2.2 The author and his brother were convicted and .entenced to death in the Hanover Di.trict Court on 7 November 1986. The Court of Appeal (!i.mil.ed the author's appeal but acquitted the brother on 5 Cctober 1987. An appeal to the Judicial Commmittee of the Privy Council ha. yet to be made. 2.3 Throughout the trla) and the appeal. the author was repre.ent~d by legal aid attorneys1 Ms. P. S. represented him before the District Court. Mr. D. C. before ~he Co\\rt of Appeal. The author state. that two London-based attorneys have agreed to assist him with the preparation of a petition for leave to appeal to the Judicial Committee of the Privy Council. l.4 The author raiee. a number of que.tion. pertaining to hi. identification by Ms. M. and ~,y anoth~r man. on the basil of which he was convicted. The other man bllegedly testified that he had .een the author in a banana field - the .cene of the crime. Yet. b~cause the author was masked, according to the witne••, he could only recognize and identify the author's build and other phy.ical feature., not hi. face. In the author's view. that was insufficient to allow propur identification. 3. Upon registering the communication on 21 March 1988. the Working Group of the Human Rights Committee instructed the Secretariat to leek further information from the author about a number of issues pertaining to his communication. in par~icular about the question of exhaustion of domestic remedies. 4. By a letter dated 3 June 1988. the author, in reapons•• informed the Committee that his legal repreaentatives in London had informed him that there were good grounds for him to appeal to the Judicial Committee of the Privy Council and that they were in the process of preparing a petition for leave to appeal on his behalf. -273- 5.1 Before con.idering any ~laim. contained in a communication, the Human Right. Committee must, in accordance with rule 87 of it. provisional rule. of procedure, decide whether or not it is admis.ible under the Optional Protocol to the Covenant. 5.2 The Committee has ascertained, as it is required to de under article 5, paragraph 2 (a), of the OptionAl Protocol, that the same matter is not being e.amined under another procedur~ of international investigation or settlement. 5.3 With respect Lo the requirement of exhaustion of domestic remedies under article 5, paragraph ~ (b), of the Optional Protocol, the Committee has noted the author's letter, dated 3 June 1988, which indicate. that his legal representative. are currently preparing a petition for leave to appeal to the JUdicial COBmittee of the Privy Council on his behalf. It thus conclude. that one a~ailable rem~ ha. not been exhausted by the author. Article 5, paragr~ph 2 (b), however, precludes the Committee from considering a communication prior to the ~xhaustion of all availbble domestic remedies. 6. The Humaa Right. Committee therefore decide.1 (a) That the communication is inadmis.ible under article 5, paragraph 2 (b), of the Optional Protocol; (b) That, siace this decision may be reviewed under rule ~ " paragraph 2, of the Committee's pr~visional rules of procedure upon receipt of . written request by or on behalf of the author containing information to the effec_ that the rea.ons for inadmissibility no longer apply, the State party sh~ll be requested, taking into account the spirit and purpose of rule 86 of the Committee's proviRional rulfts of procedure, not to carry out the death sentence against the author before he has had a reasonable time, after completing the effective domestic remedies available to him, to requeRt the Committee to review the present decision; (c) That this decision shall be transmitted to the State party and to the author. M. Communication No. 286/J988, L. S. y. Jamaica (Decl.ion adapted OD 26 July 1988 at the thirty~third sl"ion) Sqbmittod~1 L. S. [name deleted] Alleged victiml The author State party LOnCe[na~1 Jamaica Date of communicationl 8 February 1988 (date of initial letter) The Human Rights Committae, established under article 28 of the International Covenant on Civil and Political Rights, Haeting on 26 JUly 1988, Adopts the followingl -274-