CCPR/C/39/D/246/1987

thirty-ninth session)

Submitted by: N. A. J. [name deleted]

Alleged victim: The author

State party concerned: Jamaica

Rate of communication: 6 Auguet 1987 (date of initial letter)

The Human Righ, established under article 28 of the International

Covenant on Civil and Political Rights,

Meeting on 26 July 1990,

Adopta the following:

Racision on admissibility ri

1, The author of the communication (initial submission dated 6 August 1987, model

communication dated 3 dovember 1987 and subsequent correspondence) is N. A.J., a

Jamaican citisen currently awaiting exenution at 8t. Catherine District Prison,

Jamaica. He claims to be the victim of a violation by the Government of Jamaica of

articles 6, 7 and 14 of the International Covenant on Civil and Political Rights.

He is represented by counsel.

2.1 On §& October 1977, the author was convicted and sentenced to death in the Home

Circuit Court, Kingston, for the murder, on 15 January 1976, of one P. N. The

Court of Appeal of Jamaica dismissed his appeal on 23 February 1978. In

January 1988, the death sentence was commuted to life imprisonment by the

Government-General of Jamaica.

2.2 As to the facte of the case, a/ the author states that on 15 January 1976 at

about 8 p.m., he went to the decwased's house to visit his girlfriend. Together

with his girlfriend and her baby were Mr. M., the p:osecution'’s main witness, P. N.

and auother incividual. The author submits that an argument developed between the

deceased and himself in the cours: { which the deceased produced a knife and tried

to stab him. The ensuing fight was interrupted by a friend of the deceased. The

author then left the premises. On the following day, he claims, he was informed

about N‘s death.

2.3 The author argues that he was poorly assisted by his court-nppointed lawyer;

thie lawy:r, in his statement of defence before the Home Circuit Court, allegedly

failed tc request that the charges ayainet the author be reduced to manslaughter.

Furthermore, it is submitted that the summing-up of the trial judge was unfair and

unbalanced, since the judge unduly stressed the weaknesses and Giscrepancies of the

defence evidonce in his eumming-up, whereas he failed to put to the jury that the

medical and expert evidence presentsd by the prosecution put the credibility of the

testimony of the prosecution's sole eye-witness in question.

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2.4 Referring to the conditions of his detention, the author indicates that he

suffers from handivape and ailmente, without, how.ver, specifying the nature of his

diaability and whether it developed during his detention. He explains that in the

epring of 1987, welfare officers conducted interviews among inmates with permanent

handicaps, pursuant tv a prison directive that a list with ths names of disabled

inmates be submitted to the prison authorities. The author wtatesa that his name

was not included in that list and that, as a result, he has been discriminated

against.

3. By decision of 5 November 1987 the Human Righta Committee tranemitted the

communication, for information, to the State party and requested it, under rule 86

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

rules of procedure, to furnish clarifications about the facts of his case and the

circumetances of his trial and his appeal and to provide the Committee with the

transcripts of the written judgments in the case.

4. Under cover letter dated 14 January 1988, and upon request by the author, the

Secretariat of the Inter-American Commission on Human Rights forwarded to the

Committee the documents submitted by the author to the IACHR. The Secretariat of

the IJACHR indicated that the author had requested that his case be withdrawn from

consideration by that body. No clarifications were received from the author in

reply to the Committee's request.

5. By further decision of 22 March 1988, the Committee's Working Group

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

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

question of the admissibility of the communication. In particular, it requested

the State party to clarify whether the author retained the right to petition the

Judicial Committee of the Privy Council for leave to appeal and whether legal aid

would be available to him in that respect. The State party wae further asked to

provide the Committee with the texts of the written judgments in the case. 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 Committes.

6. In ite submission under rule 91, dated 25 October 1988, the State party arques

that the author's communication is inadmissible on the ground that he -::..s not

exhausted domestic remedies, as required by article 5, paragraph 2 (b), of the

Optional Protocol, since his case hag not been adjudicated upen by the Judicial

Committee of the Privy Council, Jamaica's highest appellate court.

7. In his comments, dated 29 March 1989, counsel contends that although Section 3

of the Poor Prisoners’ Defence Act provides legal aid for purposes of a petition

for special leave to appeal to the Judicial Committee of the Privy Council, an

appeal to that body constitutes a remedy of limited scope. He adds that the State

party has failed to show how this remedy could have been or could be effective in

the circumstances of the case and concludes that the requirements of article 5,

paragraph 2 (b), have been met.

8. Ir. a further submission, dated 20 June 1989, the State party submits that a

petition for special leave to appeal to the Privy Council is a genuine remedy:

thus, in the author's case, such a petition would be considered in a judicial

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hearing and udjudicated on grounds that are both judicial and reasonable. If the

Privy Council were to refuse the petition as without merit, the author could not

claim that he had no remedy; he would merely have been unsuccessful in the

pursuit. The State party therefore maintaing that the commun'cation is

inadmissible on the ground of failure to exhaust domestic remedies.

9. In further comments dated 16 February 1990, couneel affirms that while

Section 3 of the Poor Prisoners’ Defence Act may provide legai aid for purposes of

a petition for special leave to appeal, such a petition would inevitably fail in

the author's case. He pointe out that although the long delaya in the judicial

proceedings in the case should be deemed to constitute o denial of justice, the

Judicial Committee has held, in the case of Riley and othere vy. The Queen (1961)

that whatever the reasons for delays in the execution of a sentence lawfully

imposed, the delay could afford no ground for holding the execution to be in

contravention of Section 17 of the Jamaican Constitution. Counsel conciudes that a

petition for special leave to appeal to the Judicial Committee of the Privy Council:

would not be a remedy “available” to the author within the meaning of article 5,

paragraph 2 (b).

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

Committee must, in accordanve with rule 87 of ite rules of procedure, decide

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

10.2 The Committee has ascertained, as it ie 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.

10.3 With respect to the requirement of exhaustion of domestic remedies, the

Ccmmittee notes the State party's contention that the author may still petition the

Judicial Committee of the Privy Council for special leave to appeal. It notes that

the author was sentenced to death on 5 October 1977. Although the application of

domestic remedies over a period of thirteen years could be construed as being

“unreasonably prolonged" within the meaning of article 5, paragraph 2 (b), it is a

well established principle that any appellant must display reasonable diligence in

the pursuit of available remedies. In the instant case, it was incumbent upon the

author or his representative to pursue the avenue of a petition for special leave

to appeal to tke Judicial Committee after the Jamaican Court of Appeal had, in

April 1978, produced ite written judgment in the cage. The author and his counsel

have not shown, although they were invited to do so, the existence of circumsances

which would have absolved them from petitioning the Judicial Committee of the: Privy

Council in due course. In the circumstances, the Committee concludes that tho

delays in the judicial proceedings can be attributed mainly to the author, and that

the requirements of article 5, paragraph 2 (b), of the Optional Protocol have not

been met.

11. The Human Rights Committee therefore decides:

(a) That the communication ls inadmisesidle under article 5, paragraph 2 (b),

of the Optional Protocol)

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(b) That this decision shall be transmitted to the State party, to the author

and to his counsel.

{Dons in Eaglish, French, Russian and Spanish. the English text being the original

vercion.)

Notes

A/ The author does not provide a detailed account of the facts. ‘The

following account is based on the judgment of the Court of Appeal.

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