CCPR/C/37/D/251/1987

EB. Communication No. 2851/1987, A. A. vy. Jamaica

{Decision of 20 Octoher 1989, adopted at the

thirty-seventh session)

Submitted by: A. A. [name deleted)

Alleged victim: The author

State party concerned: Jamaica

Date of communication: 24 August 1987 (date of initial letter)

The Human Righte Committee, established under article 28 of the International

Covenant on Civil and Political Rights,

Meeting on 30 October 1989,

Adopts the following:

Decision on admiasibility

1. The author of the communication (initial submission dated 24 August 1987 and

subsequent correspondence) is A. A., a Jamaican citisen currently awaiting

execution at St. Catherine District Prison, Jamaica. He claims to be the victim of

a violation of his humon rights by Jamaica. He is represented by counsel.

2.1 The author claims that on 15 July 1979, a/ on his way home from work in the

Parish of St. Ann, he was attacked by an armed person who allegedly wounded him on

the hands, back and chest. In an attempt to defend himself, the author fatally

wounded the assailant. The author received treatment for his injuries, ‘including,

as he claims, several stitches "above the heart". He was subsequently arrested and

charged with the murder.

2.2 On 27 May 1981, the author was convicted and sentenced to death in the St. Ann

Circuit Court. With respect to the circumstances of the trial, the author claims

that he had insufficient opportunity to consult with his court-appointed lawyer.

Furthermore, two of the prosecution witnesses are said to have comnitted perjury,

allegedly because they had “bribed" the deceased to attack the author. Some of the

evidence presented by the police (apparently the arresting officers), the author

submits, was equally "fabricated". Several witnesses sought to testify on his

behalf; one of them, one J. B., was allegedly subjected to police intimidation

after his testimony and did not return to court. Thus, the author claims, the

police "sabotaged" his witnesses.

2.3 On 22 September 1962, the author's appeal was dismissed by the Jamaican Court

of Appeal. From the “note of oral judgment" delivered by the Court of Appeal and

trangmitted to the author under cover of a letter from the Jamaican Ninistry of

Justice dated 2 November 1988, it transpires that the lawyer assigned to the author

failed to appear in court, and that the appeal was dismissed with the author

unrepresented, The text of the oral judgment continues as follows:

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"The Court examined the Records which indicated that two grounds of

appeal were filed by applicant jn person vis:

(i) Unfair Trial,

{i4i) Evidence is insufficient to warrant a conviction,

end then he added:

‘Further grounds cf appeal will be filed by my Attorney-~at-Law,

Mr. E. S., Brown's Town P.O., St. Ann.’

No such grounds wera filed.

No further grounds of appeal were in fact filed.

The President of the Court observed that on the evidence for the

prosecution it was a clear case of murder. The defence consisted of a

Statement by the Accused from the dock in which he raised the iasue of

self-defence. The Court sa.d that the trial judge identified the icsues of

fact and gave adequate directions on the law. The application was dismissed

as being without merit."

2.4 The author claims that he has been the victim of a miscarriage of justice both

during his trial and the hearing of the appeal, and that he should have been

acquitted because he had acted in self-defence. In this context, he quotes from a

decision of the Judicial Committen of the Privy Council that he alleges should, if

applied to his situation, lead to his acquittal. The author does not provide any

details about this decision but alleges that some of the guidelines laid down in it:

were not followed in his case.

3. By decision of 12 November 1987, the Human Rights Committee transmitted the

communication, for information, to the State party, requesting it, under rule 86 of

the Committee's rules of procedure, not to carry out the death sentence against the

author before it had had a chance to consider further the question of the

zdmissibility of the communication. The author was requested. under rule 91 of the

rules of procedure, to provide several clarifications converning the conduct of his

trial and his appeai, and to provide the Committee with the texts of the written

judgments in his case. In a letter dated 21 March 1988, the author provided some

of the clarifications sought by the Committee and indicated that he had the

services of a London-based lawyer for the purpose of filing a petition for special

leave to appeal to the Judicial Committee of the Privy Council,

4. By further decision of 22 March 1988, the Working Group of the Human Rights

Committee transmitted the communication to the State party, requesting it, under

rule 91 of the Committee's rules of procedure, to provide information and

observations relevant to the question of the admissibility of the communication.

The State party was requested, in particular, to provide the Committee with the

texts of the written judgments in the case and to specify whether the author

retained the right to petition the Judicial Committee of the Privy Council for

special leave to appeal. The State party was further requested, 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.

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5.1 In gubmissionse dated 10 July and 21 August 1988, the author indicates that he

hae been unable to obtain a copy of the written judgment of the Court of Appeal in

the case, claiming that the Registrar of the Court of Appeal had informed him that

there waa no such judgment. In the author's upinion, this constitutes inhuman and

degrading treatmeat, eaince he has been on death row since May 1981, and a written

judgment of the Court of Appeal must be submitted for u petition for special leave

to appeal to be entertained by the Judicial Committee of the Privy Council. It is

submitted that his counsel in London has been unable to file a petition because of

the absence of this written judgement.

5.2 Ina further submission, the author reiterates that his legal representation

throughout the proceedings was wholly inadequate, and that his legal aid attorney

failed even to file further grounds of appeal, as he had requested. He submits

that generally, because of the insufficiency of fees paid to attorneys working on

legal aid assignments, few lawyere ever take their client's interest seriously in

capital cases and that, as a result, many inmates have lost confidence in the

system which, on paper, provides them with the possibility to petition the Judicial

Committee of the Privy Council for leave to appeal.

6. In its submission under rule 91, dated 7 December 1988, the State party azgues

that the communication is inadmissible on the ground of non-exhaustion of domestic

remedies and that the 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. It adde that legal aid would be available to the author for this

purpose pursuant to Section 3, paragraph 1, of the Poor Prisoners' Defence Act.

The author did not comment on the State party's submission.

7. On 21 December 1988, the law firm representing the auchor informed the

Secretariat that senior counsel instructed to prepare a submission on the merits of

a petition for special leeve to appeal to the Judicial Committee of the Privy

Council had argued against the merits of such a petition in mid-1988.

Subsequently, the firm had received a copy of the "note of oral judgment" of the

Jamaican Court of Appeal, dated 22 September 1982, from an unrelated third party in

the United States; on the basis of this document, counsel had been instructed to

prepare another opinion on the merits of a petition. On 5 September 1989, counsel

confirmed that her firm continues its efforts to bring the author's case before the

Judicial Committee of the Privy Council and informed the Committee that a petition

for special leave to appeal could be expected to be based on two grounds: the

issue of the absence of a reasoned judgment of the Court of Appeal and the question

of the author's age at the time of the murder.

8.1 Before considering any claims contained in a communication, the Human Rights

Committee must, in accordance with rule 87 of its rules of procedure, decide

whether or not it is admissible under the Optional Protocol to the Covenant.

8.2 The Committee has ascertained, as it is required to do under article 5,

paragraph 2 (a), of the Optional Protocol, that the same matter is not being

examined under another procedure of international investigation or settlement.

8.3 With regard 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 Committve of

the Privy Council for special leave to appeal. It observes that the author has

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obtained representation by London solicitors for thie purpose, after submitting his

communication to the Human Rights Committee, and that his representatives continue

to prepare a petition for special leave to appeal on his behalf. While expressing

grave concern about the delay in making available to the author a copy of the "note

ef oral judgment" of the Jamaican Court of Appeal in November 1988, the Committee

cannot conclude that a petition for special leave to appeal to the Judicial

Committee of the Privy Council must be considered a priori futile. It therefore

finde that the requirements of article 5, paragraph 2 (b), of the Optional Protocol

have not been met.

9. The Human Rights Committee therefore decides:

(a) That the communication is inadmissible under article 5, paragraph 2 (b),

of the Optional Protocol;

(b) That, since thia decision may be reviewed under rule 92, paragraph 2, of

the Committee's 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

inadmiesibility no longer apply, the State party shall be requested, taking into

account the spirit and purpose of rule 86 of the Committee's rules of procedure,

not to carry out the death sentence againat the author before he has had a

reasonable time, after completing the effective domestic remedies available to him,

to request the Committce to review the present decision;

(c) That this decision shall be tranemitted to the State party, to the author

and to his counsel.

Notes

B/ «The Notes of Evidence give the date of 15 July 1980.

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