CCPR/C/37/D/290/1988

M. Communication No. 290/1988. A. W. vy. Jamaica

(Deciaion of § Novembex 1989, adopted ai, the

tnirty-seventh session)

Submitted by: A. W. [name deleted]

Alleged victim: The author

State party concerned: Jamaica

Date of sommunication: 16 February 1988 (date of initial letter)

» established under article 28 of the International

Covenant on Civil and Political Rights,

Meeting on 8 November 1989,

Adopta the following:

Decision on admissibility*

1. The author of the communication (initial submission dated 16 February 1988 and

subsequent correspondence) is A. W., a Jamaican citizen currently awaiting

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

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

2.1 The author, who claims to be innocent, was arrested on 14 June 1983 and

charged, together with one G. 8., a/ with a murder, on 13 June 1983, of one R. H..

He waa tried in the Westmoreland Cizouit Court, Jamaica, convicted and sentenced to

death on 7 Junv 1984. On 7 April 1986, the Court of Appeal of Jemaica dismissed

his appeal.

2.2 The author states that on 13 June 1983 he was working in his cane field, when

Mr. H. approached him and attacked him with a knife; in the course of the ensuing

struggle, the assailant suffered head injuries. Afterwards, the author stopped a

passing police car and informed the police officer of the incident. This officer

reportedly told the avthor and his co-defendant to place the wounded man into the

beck cf the police car and drove him to the hospital. Later that day, the same

officer returned to the author's home, informed him that Mr. H. had died and

proceeded to arrest him. He was charged with murder the following day.

2.3 It is alleged that the trial was conducted in a biased way. Although the

author's lawyer allegedly cross-examined the two witnesses against him, the judge

is said to have constantly interrupted the defence, objected to several relevant

questions and even suggested answers to the witnesses. No witnesses are said to

have testified on the author's behalf.

a The text of an individual opinion by Ms. Christine Chanet is reproduced

in the appendix.

-172-

3. By decision of 8 July 1988, the Working Group of the Human Rights Committee

transmitted the communication to the State party and requested it, under rule 91 of

the rules of procedure, to provide information and observations relevant to the

question of the admissibility of the communication. It 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 comnunication was under ‘onsideration by the

Committee. The author was requested tu provide several clarifications concerning

his case.

4. In his reply, dated 10 October 1988, tho author claime that the statements of

the two prosecution witnesses were contradictory. In particular, one of the

witnesses referred to a machete allegedly used by the author as the lethal] weapon,

the other one to an iron pipe and a stone. No iron pipe was, however, exhibited

and no forensic teste were carried out on a stick and a stone which had been

introduced in evidence. Moreover, the knife allegedly used by Mr. H. was not

recovered by the police and, although the trial judge requested that this point be

Clarified, the police apparently did not comply with the request. The author

contends, in particular, that he did not get a fair trial since the trial judge

failed to direct the jury on the issue of self-defence.

5. In his submission under rule 91, dated 2 December 1988, the State party erques

that the communication is inadmissible pursuant to article 5S, paragraph 2 (b), of

the Optional Protocol because the author may still appiy, under Section 110 of the

Jamaican Constitution, for special leave to appeal to the Judicial Committee of the

Privy Council,

6. By further letter dated 5 May 1989, counsel indicates that the author's

petition for spevial leave to appeal was heard and dismissed by the Judicial

Committee of the Privy Council on 4 May 1989.

7. In a further submission dated 12 July 1989, the State party contends that, in

spite of the dismissal of the author's petition by the Judicial Committee of the

Privy Council, the communication remains inadmissible for failure to exhaust

domestic remedies, since the author has failed to pursue remedies available to him

under the Jamaican Constitution. In this context, the State party submits that the

provigion of the Covenant invoked by the author (art. 14) is coterminous with the

right guaranteed by Section 20 of the Jamaican Constitution, which provides for due

process. Under Section 25 of the Constitution, if anyone alleges that any one of

the rights guaranteed by Section 25 has been, is being, or is to be contravened in

relation to him, he may, without prejudice to any other action with respect to the

game matter which is lawfully available, apply to the Supreme Constitutional Court

for redress. The State party thue reiterates that the comrunication is

inadmissible.

8.1 Before considering any claims contained in a communication, t:he Human Righte

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 Committes has considered the material aubmitted by the author's counsel,

including the author's petition for special leave to appeal to the Judicial

Committee of the Privy Council. From this information, it appears thet the author

Claims bias of the court, in particular in reapect of the adequacy or otherwise of

the judge's instructions to the jury, in the light of tha evidence that was put

before the jury and which it was for the jury to accept or reject. While

~173-

article 14 of the Covenant guarantees the right to a fair trial, it is for the

appellate courts of the States parties of the Covenant to evaluate facts and

evidence in a particular case. h/ Thus the review, by the Committee, of specific

instructicas to the jury by the judge in a trial by jury or of generalised claims

of bias is beyond the scope of application of article 14. In the circumstances,

the Committee concludes that the communication ie inadmissible as incompatible with

the provisions of the Covenant, pursuant to article 3 of the Optional Protocol.

9. The Human Rights Committee therefore decides:

(a) The communication is inadmissible;

(b) This decision chall be transmitted to the State party, to the author and

to his counsel.

Notes

a/ «Mr. G. 8S.'s communication No. 369/1989 was declared inadmissible by the

Committee on 8 November 1989.

b/ For an application of this principle, see communication No. 201/1985

(Hendriks v. Netherlands), final views adopted on 27 July 1988, para. 10.4.

-174-

APPENDIX

As emphasised by the Committee in the case of communication No. 2906/1988, it

ie within the competence of national courts, particularly eppeal courts, to assess

the fairness of the conditions in which a trial takes place.

However, this competence cannot exclude that of the Committee in

implementation of the International Covenant on Civil and Political Rights. When a

communication is submitted to it, the Committees assesses whether the trial was

conducted in accordance with the provisions of artic.e 14 of the Covenant.

At the admissibility stage, the Committee proceeds to a prima facie review of

the applicant's grievances. The author of this communication chal*tnges the

regularity of the judge's conduct of the hearing. In particular, A. W. referred to

an examination of the witnesses which might be contrary to article 14,

paragraph 3 (e), of the Covenant.

It is therefore my view that, while the facts adduced by the applicant could

be regarded ae insufficiently substantiated, they could not be declared

incompatible with the provisions of the Covenant on the basis of srticle 3 of the

Optional Protocol.

-175-