CCPR/C/35/D/223/1987

H. Cammunigatign Ng. aaa/1R87. Frank Robinsgn~~amai~A (Vilws adOpt.d gn 30 MArch lR8R At th. thirty-fiftb,.ssion) Sybmitted byl Frank Robin.on ~lleged yictiml The author Stat§ party concern.dl Jamaica Date Qf communicAtignl 5 February 1987 (dat. of initial lett.r) Date Of d.gi,ign gn Admissibilityl 2 November 1987 Th. Human Right, Committ••, established under article 28 of the International CQvenant on Civil and Political Rights 1 M§eting on 30 March 1989, HAying ggnclud.d its consideration of communication No. 223/1987, submitted to the CommJ.ttee by Frank Robinoon under' the Optional Protl)col to the Intflrnational Covenant on Civil and Political Rights, Haying tAk.n into Account all written information made available to it by the author of the communication and by the State party, Adopts the followingl Vi§ws und.r articl. 5. PAragraph 4. Of the Optional ProtOCOl 1. The author of the communication (initial letter dated 5 February 19871 further 19tter dated 15 July 1987) is Frank Robinson, a Jamaican citizen serving a Ilfe sentence in Jamaica. He c1aimB to be a victim of a violation of article 14 of the Covenant by the Gov.rnment of Jamaica. H. is represented by counsel. 2.1 On 31 August 1978, Frank Robiolon Wft. arrelt.d and charg.d, jointly with ~nQther man, of having committed murd.r. Thv trial wal initially fixed for 18 April 1979 but had to b. postponed on lix occasionl because the prosAcution had not been able to locate its chief witness. After the witness was found, the trial W06 Cixed for 30 March 1981, but un that date counsel for Mr. Robinson were not present, allegedly because they had not bean given full instructions. The trial jUdge understood this to mean that counsel had not received the funds nucessary to [inance Mr. Robinson's d.fence. After Mr. Robinson was arraigned, he was told oC his right to chall&nge jurors, but he did not exercise this right and merely asked to see his counsel. The jury was sworn in and a two··hour adjournment was granted to attempt to contact Mr. Robinson's counsel. At the resumption of the trial, the judge was informed that junior counsel for Mr. Robinson would appear in court the next day. The trial, however, was allowed to proceed. On the following day junior counsel appeared 8n~ requested the judge's permission, on behalf oC senior counsel and himself, to with6raw from the C8se. The judge refused this request but invited counsel to appear Qn legal ~id. Counsel reCused this offer, leCt the courl and never retllrned. The judge refused any further adjournment and the trial cont.il\\h'c\ -241- with Mr. Robioson unrepresented. During the trial, Mr. Robinson called his mother as a witn••• to support his alibi defence. He aalled no other witnesses, although it is alleged that there were others in court who could have been aalled. He did not croll-examine any of the witnesses called for the prosecution and only made a final speech lasting three minutes. On 2 April IPal (after three days of proceeding.), he was convioted of murder and sentenaed to death. 2.2 With regard to the issue of the exhaustion of domestic remedies, Mr. Robinson appealed to the Court of Appeal of Jamaica, which dismissed the appeal on 18 March 1983. The Court did not give any reasons. He further appealed to the JUdicial Committee of the Privy C~un~il, contendin9 that the trial judge, by refusing an adjournment to enable him to mako arrangements for his defence by other eoun.el, had infringed 00 hi. right under lection 20, paragraph e (c), of the Con.titution of Jamaica to "be permitted to d6fend himself ••• by a legal representative af his own choice" and that thereforo his conviction should be quashed. In a deoi8ion by a three to two majority, the Privy Council dismissed the appeal on the grounds. (a) that he dld not enjoy an absolute right to legal representation, but was merely permitted to e.ercise the right to be legally represented, provided that he himself arranged for his representation I (b) that the judge was not required to grant repeated adjournments, especially considering the present and future avallability of witnessesl (c) that he should have applied in advance for legal aid I and (d) that no misc4rriage of justice had occurred as a result of the absence of legal counsel, because the judge had put the caSQ very fUlly and fairly to the jury and, once the veracity of the chief prosecution witnesses had been established under cr08s-exami.lation by counsel for the co-acculed and the alibi defence of the mother had been rejected, the case against the author wes overwhelming. 2.3 As a relult of representations made to the Governor-General of Jamaica, Mr. Robin.on'l sentence of death was commuted in mid-198S ar-d changed to life imprisonment. It i' claimed that Mr. Roblnson Is a victim of a violation of article 14, paragraph 3 (d), of the Covenant, because he was tried without the benefit of legal reprelentation, not only as a relult of the withdrawal of hiB counsel, but because of the judge'S refusal to grant an adjournment to allow him to make alternative arrangements for his legol representation. It is also claimed that he i. a victim of a violation of article 14, paragraph 3 (e), becauye, not being properly reprelented, he was unable effectively to cross-examine witnosses against him or to obtain the atten~ance of witnesses on his own behalf. In this connection, it is claimed that Mr. Roblnsun was denied a felr hearing, in violation of article 14, paragraph 1, of the Covenant. 3. 8~ its deci'ion ot 19 March 1987, the Working Group of the Human Rights Committee transmitted the communication under rule 91 of the provisional rules of procedure to the State party, r_questinq information and observations relevant to the question of the admissibility of the cummunication. 4.1 In its submission under rule 91, date~ 4 June 1987, the State ~arty argues that none ot the rights enumerated in article 14 which have b~en invoked by the author have been vlolated In his case.

4. Z The State party obsorves that th~ JUdiciol Committee ol the Privy Council, when examining the author's appoal in 1985, found that there h~d been no breach of section 20, paragraph 6 (c), of th~,)anu'licfln COlilJtitution, which stipulates t.hat "every person who is charged with a criminal offonc~ shall be permitte~ to defend himself in per~on or by 6 legal r~pre8entative of his own choico" and which the -242- State party .eeM a. being coterM1"~u. with an individual'. right, laid down in article 14, para~raph 3 (d), of the Covenant, "to d.f.nd him••lf in perlon or thruugh legal as~istance of hi. own choolin9", \t furth.r r.calll that the Privy Council held that the aforemention.d oon.titutional provilion did not grant an absolute 'right to legal repre.entation in the ••n•• that it obliged a judge, "whateve r the ch·cumstanoe., alway. to grant an adjournment .0 I&S to ensure that no on8 who wishes legal repr••entation i. without .uoh repr••entation". Concerning the author's ca.e, the State party reiterate. that while it i. true that the CDse was adjourned 19 times, 6 of which w.re trial date., th••• Mdjournment. w.re largely due to the difficulties of the prosecution in finding its chief witness, who allegedly had been subjected to threats against hi. lif~. The trial judge unsuccessfully tried to persuade the two attorneys who had appeared on behalf of the author on all pr.viou. occasion. to continue to repre.ent the author, The attorney., however, lIltated that they had not been "fully in.tructed", which according to the State party eau only be con.trued a. a euphemism to indicate that they had not received th.ir full f.es. Th. one attorn.y pr•••nt in court refused an assignment of legal aid from the jUdge to appear for the author. 4.3 Concerning the author'. t118gation of a breaoh of hi. right, under article 14, paragraph 3 (e), of the Covenant, "to examine, or have eXlUI"lined, the witne.se. against him and to obtain the attendance and examination of witnes.e. on his behalf under the slUl"le condition. a. witn••••• again.t him", the State party argue, that since there was no denial of the right to be repre.ent.d by counsel, this allegation cannot be upheld. It notes that the author "was gi'/en every opportunity to examine and cross-examine witnesses, and was in fact significantly alsisted by the judge in the examination of hiB principal witnesses". 4.4 Finally, the State party rejects the author'. contention th~t he was denied a fair hearing in violation of article 14, paragraph 11 ", .• [I)n any event it is clear from the fact., a. well as the above-mentioned jUdgement of the Judi~ial Committee of the Privy Council, that there was no breach of the right to a fair hearing .ith.r under the Jamaican Constitution or the Covenant. In particular, it is to be noted that the Privy Council ••• foun~ that the judge had put the applicant's defence to the jury very fairly and fuJ.ly, Ilnd t.hat there wa. no ml,carriage of ju.t1C'e." 5.1 Commenting on the State party's submission under rule 91, the author, in a submission dl&tld 15 July 1987, contend. that his allegations with re.pect to a violation of article 14, paragraph. 1 and 3, are well founded. 5.2 He submits that all the issue. raised by the State party were comprehensively dealt with in his initial communication, and that the State party's reference to the numerous adjournments granted in the case merely confirm that the latter were meant to accommodate the prosecution. The f4cts, therefore, confirm his contention that he was denied equality of arms guaranteed by article 14, par_graph 3 (e). The author submitted a copy of a rece,lt jUdgment of the English Court of Appeal which is said to support his contention, and in which the Court of Appeal held that if it wn~ clear that it would be impossible for a lJtigant to obtain justice, an adjournmont order should be "Iade, even if it was highly inconvenient to do 10. 5.3 The author allo rejects the State party's contention that the trial jUdge put the author '/1 defence to the jury livery fairly and fUlly" I while the jUdge could give Rome guidance and assietance to the author, he was not in a position, al an -243- impartial and independent arbiter, to represent the author in the same way as a defence counsel could have done. Finally, the author contends that the commutation of his death sentence into one of life imprisonment does not constitute an appropriate remedy in the circumstances of his case, as the State party has asserted. 6.1 Before considering any claims in a communication, the Human Rights Committee must, in accordance with rule 87 of its provisional rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant. 6.2 The Committee noted that the State party did not claim that the communication was inadmissible under article 5, paragraph 2, of the Optional Protocol. With regard to article 5, paragraph 2 (a), the Committee observed that the matter complained of by Mr. Robinson had not been submitted to another procedure of international investigation or settlement. With regard to article 5, paragraph 2 (b), the State party did not contest the author's claim that there were no effective remedies which he could still pursue. 6.3 With regard to the parties' submissions concerning alleged violations of article 14, paragraphs 1, 3 (d) and 3 (e), the committee decided to examine these issues with the merits of the case. 7. On 2 November 1987, the Human Rights Committee therefore decided that the communication was admissible. 8. In its submission unde~ article 4, paragraph 2, of the Optional Protocol, dated 17 November 1988, the State party reiterates, as it had done in its submission of 4 June 1987, that it does not consider any of the rights invoked by the author to have been violated by the Jamaican courts. It further draws attention to the fact that the Governor-General exercised his prerogative of mercy in Mr. Robinson's case and commuted the death sentence to ~ne of life imprisonment. 9. The Committee has ascertained that the judgement of the Judicial Committee of the Privy Council made no finding with regard to a breach of the Covenant by the Jamaican Government, confining itself to findings concerning the Jamaican Constitution. 10.1 The Human Rights Commi'.;tee, having considered the present communicat' '11 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, hereby decides to base its views on the following facts, which appear uncontested. 10.2 Frank Robinson was arrested on 31 August 1978 and charged with murder. His trial, initially scheduled to start on 18 April 1979, had to be postponed on this and on six subsequent occasions; this was attributable to the fact that the prosecution had not been able to establish the place of residence and to SUbpoena its chief witness. allegedly because the latter had been subjecLad to threats against his life. Whel~ this witness was finally lo~ated and the trial began, neither of the author's two lawyers was present in court. The judge, however, allowed the trial to proceed. On the following day, one of the defence lawyers made a brief appearance only to request the judge's permission, on behalf of senior counsel and himself, to withdraw from the case. The judge refused this request and invited counsel to appear on legal aid. Counsel, however, refused this offer, and the jUdge ordered the trial to proceed with the author unrepresented. Mr. Robinson -244- was left to defend him.elf, and on 2 April 1981 W~I convict.~ and sentenced to death. On 18 March 1983, the Jamaican Court of Appeal rejected his appeal without a written judgement, and in 1985 the Judicial Committee of the Privy Council dismissed his further appeal by a 3 to 2 majority decision. In June 1985, the Governor-General of Jamaic~ exercised his prerogative of mercy and commuted the author's death .entence to life imprilonment. 10.3 The main question before the Committee is whether a State party i~ under an obligation itself to make provision for effectiv4 representation by counsel in a case concerning a capital offence, should the counsel selected by the author for whatever reason decline to appear. The Committee, noting that article 14, paragraph 3 (d) stipulates that everyone shall have "legal assistance assigned to him, in any case where the interests of justice 10 require", believes that it is axiomatic thal legal assistance be available in capital cases. This is so even if the unavailability of private counsel is to some degree attributable to the author himself, and even if the proviRion of legal assistance would entail an adjournment of proceedings. This requirement is not rendered unnecessary by efforts that might otherwise be made by the tri~l judge to assist the author in handling his defence in the absence of counsel. In the view of the Committee, the absence of counsel constituted unfair trlal. 10.4 The refusal of the trial judge to order an adjournment to allow the author to have legal repreAentation, when several adjournments had already been ordered when the prosecution's witnesses were unavailable or ~nready, raises issues of fairness and equality before the courts. The Committee 1s of the view that there has been a violation of article 14, paragraph 1, due to in4quality of arms between the parties. 10.5 The Committee, basing itself on the information provided by the parties concerning the author's entitlement to examine witnesses, finds that there hay been no violation of article 14, paragraph 3 (e). 11. The Human Rights Committee, acttng under article 5, paragraph 4, oi the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as submitted reveal a violation of article 14, paragraphs land 3 (d), of the Covenant. 12. The Committee, accordingly, is of the view that the State party is under an obligation to take effective measures to remedy the viOlations suffered by the author, through his relea.e, and to ensure that uimilar violations do not occur in the future. -245-