CCPR/C/36/D/231/1987

C. CQmmun!gatiQD HO. 231/1087, A••• y. Jama!ga <p.glslpD Qf 21 July 1089. Idopt.d It tb. tbirty-.12th 1'I,iPD) Submitt.d ~YI A. S. (namv d.1.t.d] Al1.g.d yigtiml Th. author Stat. patty gODP.rD.da Jamaica pat. Qf AQmmunigatlQDt 7 Jun. 1987 (dat. of initial 1.tter) Th. HumIn Rights Committ••, .stab1ish.d und.r article a8 of the Int.rnationa1 Cov.nant on Civil and Political Rights, MI.ting on 21 July 1989, AdQpts the followingl D.;illon on admi.libility 1. Th. author of the communication (initial lubmil.ion dat.d 7 Jun. 1987, ••v.ral .ubs.~u.nt submissions) is A. S., a Jamaican citis.n curr.ntly awaiting .z.cution at St. Cath.rin. District Prison, Jamaica. H. claims to be the victim of a violation of his human rights by the Government of Jamaica. a.l Th. author states that h. and Winlton Wright w.r. arrested and charg.d with the murder, on 28 Novemb.r 1983, of on6 Jalp.r V.rnon, but claiml to b. innoc.nt of the crim.. H. was convict.d and s.nt.nc.d to death on a9 January 1985 in the St. Jam.1 Circuit Court, while hi~ co-d.f.ndant wal convict.d of manslaught.r and lent.n~.d to 10 y.arl of hard labour. 2.2 With r'lp.ct to the fact. of the ca••, it app.arl AI that the d.c.a••d and the author w.r. living in the same ar.a and reputed to be good frlend.. On the night of 28 Nov.mber 1983, at or around 9 p.m., ~n. ~f the witn••s.s, Roy Clark., h.ard the lound of wr.ltling and of two gunshot. outlid. his hOUI., and th.n a voic. callinq out for h.lp. Aft8r a f.w mom.nts, h. w.nt outsid. and found the victim, who had b••n I.riously woun~.d by bull.ts fir.d at clol' rang.. H. th.n r.cognised that it was the victim'l voic. which he had previously h.ard, asking "(Nam.], what do you want to kill m. for?". During the trial, the author'. r.pr.s.ntative object.d to this stat.ment of Mr. Clark. al being heMrlay and thus inadmislible, but the judq. rul.d it to b. admi.lible, al part of the rls glsta•• 2.3 Mr. Vernon was brought to the Cornwall R.giona1 Hospital in Mont.go Bay, where .m.rqency surgery was p.rformed on him. Two polic. inspectors w.nt to the hOlpital Ihortly aft.r hil admi'lion. On. of th.m, upon hi. arrival in the casualty ward, h.ard a voic. calling out the author's name and id.ntifying him al the on. who had fired the shots. H. lat.r r.coqnil.d the voic. a. b.ing that of the d.c.al.d. The insp.ctor conduct.d a bri.f \nt.rvi.w with the victim, who was in a l.rioul condition but still conlcioul. At the trial, author'. coual.l again obj.ct.d to the inlp.ctor's .vid.nc. al h.arlay and r.qu.lt.d that it b••zc1ud.d, but the judq. rul.d the evid.nc. admilsibl. a~ the "dying d.claration of a victim of homicid.... Mr. V.rDoD luccumbed to hil injuries later on 28 Nov.mber or in the early hours of a9 Novemb.r 1983. -274- 2.4 The author and his co-defendant claimed that they themselves had been held up that same evening by three gunmen near the spot where the deceased had been shot, and gave evidence to this effect during the trial. The prosecution, however, contended that their account contained so many discrepancies as to suggest that their version was merely a concoction to persuade others that they had not perpetrated the crime in question. 2.5 The author appealed against his sentence on the grounds of "unfair trial" and "unreliable evidence", but on 9 July 1986, the Court of Appeal refused leave to appeal and confirmed the sentence, after counsel for the author had conceded that there were no gro_nds of appeal that could be argued with any hope of success. The Court of Appeal delivered a written judgement on 24 September 1986. The author submits that his representative subsequently told him that there was no merit in the case justifying an appeal to the Judicial Committee of the Privy Council, and that the case would be placed before the Governor-General for clemency. 3. By decision of 21 July 1987, the Human Rights Committee tl'ansmitted the comw.unication, for information, to the State party and requested it, under rule 86 of the provisional rules of procedure, not to carry out the death sentence against the author before it had had an opportunity to consider further the question of the admissibility of the commutlic~tion. The author was requested, under rule 91 of the provisional rules of procedure, to furnish information concerning the facts of his case and the circumstances of his trial and to provide the Committee with the transcripts of the written judgements. 4. In a submission dated 21 October 1987, the State party argues that the communication is inadmissible on the ground of non-exhaustion of domestic remedies because the case has not yet been adjudicated by the Judicial committee of the Privy Council. The State party adds that "[iln circumstances such as these a reasonable interpretation of the Optional Protocol and the Committee's rules of procedure does not yield to the conclusion f~hat the State party is required to furnish documents and information in relation to a communication which is patently inadmissible". Uh':'" cover of a further note dated 10 December 1987, the State party does, however, forward a copy of the Notes of Evidence in the author's case. S. Under cover of a letter dated 10 February 1988, the lawyer who represented the author before the Court of Appeal forwarded a copy of the jUdgement of the Court of Appeal. He states that he had formed the opinion that there was no merit in the author's case, since the author had been, in his opinion, properly identified. He adds that the caRe was not further pursued with a view to filing a petitJon for leave to appeal to the JUdicial Committee of the Privy Council. 6. By decision of 16 March 1908, the Working Group of the Human Rights Committee transmitted the communication to the State party, reque&~~&g it, under rule 91 of the provisional rules of procedure, to provide information and obser'/ations relevant to the question of the admissibility of the rommunication. In p~rticular, it requested the State party to clarify whether the author retained the right to ~~tition the Judicial Committee of the Privy Council for leave to appeal and whether legal aid would be available to him in that respect. The Working Group further requested the State party, under rule 86 of the rules of procedure, not to carry out the death sentence against the author while his communication was under consideration by the Committee. -275- 7. In its submission under rule 91, dated 20 July 1988, the State party contends that the communication is inadmissible on the grclund of non-exhaustion of domestic remedies because tho 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. 7he State party adds that legal aid would be available to him for this purpose pursuant to section 3, paragraph 1, of the Poor Prisoners' Defence Act. 8. Commenting on the State party's submission, the author, in a letter dated 11 January 1989, states that he has contacted a law firm in London, which he claims would be willing to assist him for purposes of filing a petition for leave to appeal to the Privy Council. By phone call of 8 June 1989, author's counsel in London confirmed that he is preparing a petition on behalf of the author. 9.1 Before considering any claims contained 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. 9.2 The Committee has ascertained as it is required to do under article 5, paragraph 2 (a), of the Optional Protocol, that the matter is not being examined under another procedure of international investigation or settlement. 9.3 With respect to the requirement of exhaustion of domestic remedies, the Committee has noted the State party's contention that the communication is inadmissible because of the author's failure to petition the Judicial Committee of the Privy Council for special leave to appeal. It observes that the author, although claiming that there would be no merit in pursuing such a petition, has obtained pro bono representation fOI this purpose, and that his representative is currently preparing a petition for special leave to appeal on his behalf. 7he Committee cannot conclude, on the basis of the information before it, that a petition for special leave to the Privy Counci must be considered a priori futile. It therefore finds that the [equireme ~s of article S, paragraph 2 (b), of the Optional Protacol have not been met. 10. The Human Rights Committee therefore decidesl (a) 7hat the communication is inadmissible under article 5, paragraph 2 (b), of the Optional Protocol; (b) That, since this decision may be reviewed under rule 92, paragraph 2, of the Committee's provisional rules of procedure upon receipt of a written request by or on behalf of the author containing information to the effect that the reasons for inadmissibility no longer apply, the State party shall be requested, taking into account ~he spirit and purpose of rule 86 of the Committee's provisional rules 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 request the Committee to review the present decision; (c) That this decision shall be transmitted to the State party and to the author. Notes ~I The author's initial and subsequent submissions do not provide a detailed account of the facts. 7he following description is drawn primarily from the outline of the facts contained in the judgement of the Court of Appeal. -276-