CCPR/C/39/D/250/1987

J. Communication No, 250/1987, Carlton Reid v. Jamaica ‘views

adopted on 20 July 1990, at the thirty-ninth session)

Submitted by: Carlton Reid (represented by counse:)

Alleged victim: The author

State party concerned: Jamaica

Date of communication: 7 August 1987 (initial submission)

Rate of decision on admissibility: 30 March 1989

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

Covenant on Civil and Political Rights,

hating on 20 July 1990,

Having concluded its consideration of communication No. 250/1987, submitted to

the Committee by Mr. Carlton Reid under the Optional Protocol to the International

Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the

author of the communication and by the State party,

Adopts the followirg:

Views under article 5. paragraph 4, of the Optional Protocol*

1. The author of the communication (initial submission dated 7 August 1987 and

subsequent correspondence) is Carlton Reid, a Jamaican citizen awaiting execution

at St. 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 The author was arrested on 2 December 1983 and charged with the murder, on

10 June 1983, of one Miriam Henry, at the site of the Water Commission at Langley,

Mount James. His trial took place in the Home Circuit of Kingston on 25 and

26 March 1985; he was found guilty and sentenced to death. On 6 October 1986, the

Jamaican Court. of Appeal dismissed his appeal.

2.2 The prosecution accused the author of being one of three armed robbers who

raided the payroll of the Water Commission Pumping Station on 10 June 1983. It is

reported that the perpetrators first proceeded to the kitchen, where the author

purportedly wounded a woman by shooting her in the arm. The shot was not fatal and

she, together with others, escaped to another building where they locked themselves

in a room on the first floor. Witnesses identified the author as being one of the

* Au individual opinion submitted by Mr. Bertil Wennergren is appended.

robbers in the kitchen, but the murder allegedly took place in the upstairs room to

where the group had fled. During the trial the prosecution argued that the author

had gone upstairs. Of the persons in the upstairs room, the only witness who was

called, Mr. F. Josephs, testified that after the door had been opened, the author

entered the room with a gun and that the wounded woman was shot in the head.

2.3 According to the author, Mr. Josephs’ evidence was unreliable. First, he had

described him as wearing no mask, which was in complete contradiction to the

evidence of all the other witnesser who had identified him as wearing a mask.

Secondly, Mr. Josephs testified that the author had dragged him down the stairs,

although none of those downstairs had seen this and no one had identified the

author as either walking vr or down the stairs at any time. Another witness who

had been in the downstairs room, Ms. Hermione Henry, testified during the

preliminary inquiry that two men had run upstairs and that one of them was carrying

a shotgun. It was agreed that the author was not the man with the shotgun, and

Miss Henry never identified either man as the author. During the trial, Miss Henry

retracted her testimony given during the preliminary inquiry and claimed that the

max with the shotgun had remained downstairs with her all the time.

2.4 At the conclusion of the trial, the author claims, the judge failed to comply

with his duty to direct the jury on the rolevant points of law and to sum up for

the jurors the evidence relevant. to the charge. It is alleged that he failed to

mention any of the evidence as to what had happened in the upstairs room, where the

murder had taken place, and even forgot to tell the jury that the murder had

occurred in that room. In short, according to the author, he did not refer to any

of the evidence concerning the murder charge on which the jury had to return a

verdict. This, in his opinion, was tantamount to summing up a different case

altogether, since the judge only focused on the robbery-related evidence, where the

identification evidence was strong, although none of that evidence related to the

murder.

2.5 Following his conviction, the author appealed to the Jamaican Court of

Appeal. He claims that, on appeal, few lawyers are willing to accept legal aid

assignments. ‘The lawyer who had been assigned to argue his appeal informed him

that an appeal would be futile. The author requested that a different lawyer be

assigned to his case. This notwithstanding and against his wishes, the lawyer who

had first been assigned to argue the appeal appeared before the Court of Appeal and

informed it that there were no grounds of appeal. This, apparently, relieved the

Court of Appeal from having to examine the case ex officio, as it would have been

required to do if no lawyer had appeared for the author. Faced with the lawyer's

concession, the Court of Appeal dismissed the appeal on 6 October 1986.

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

communication, under rule 91 of its rules of procedure, to the State party,

requesting information and observations relevant to the question of the

admissibility of the communication. The Committee further requested the State

party, under rule 86 of its rules of procedure, not to carry out the death sentence

against the author before the Committee had had the opportunity to decide on the

question of admissibility. In addition, the Committee requested clarifications

concerning the case from both the State party and the author.

-86-

4. By letter dated 29 December 1987, the author provided a number of

clarifications. He indicated that the firat time he was able to communicate with

the legal-aid attorney assigned to his case was on the opening day of the trial.

The lawyer requested a postponement because he had not been able to discuss the

case with the accused, but the judge refused to grant it. Apparently, the lawyer

was wholly unprepared and reportedly told the author that re did not know which

questions to pose to the witnesses. With respect to the appeal, the author stated

in a further letter dated 11 March 1988 that, prior to the hearing of his appeal,

he had received a letter dated 1 September 1986 from the lawyer agsigned to argue

the appeal, reading as follows: “I am sorry to disappoint you, but having read the

transcript of your case, I cannot find any merit in the appeal. Four witnesses

identified you as the killer. That evidence cannot be overturned on appeal.

Unfortunately, I will be unable to assist you any further." Although the author

did request the services of a different attorney, this lawyer represented him in

the Court of Appeal. In fact, he argued that "having carefully read the record and

considered the learned trial judge's summation, he could find no arguable ground to

support the application."

5. In its submission under rule 91, dated 26 May 1908, the State party argued

that the communication was inadmissible on the grounds of the author's failure to

exhaust all available domestic remedies, as required by article 5, paragraph 2 (b),

of the Optional Protocol. It asserted that the author could still apply, purevant

to section 110 of the Jamaican Constitution, for special leave to appeal to the

Judicial Committee of the Privy Council, and that legal aid would be available to

him for that purpose. The State party also confirmed that the Court of Appeal

dismissed the author's appeal on the grounds outlined in paragraph 4 above.

6.1 Commenting on the State party's submissior, author's counsel, by letter dated

10 February 1989, Indicatos that the Judicial Committee of the Privy Council

diemissed the author's petition for special leave to appeal on 29 November 1988.

This, it is submitted, means that all available domestic remedies in the case have

been exhausted. Counsel explains, in this context, that the only way for the

author to file an application for special leave to appeal was to seek the

assistance of English solicitors and counsel willing to act pro bong, as legal aid

available for defendants to submit their case to the Privy Council is inadequate.

6.2 Counsel further states that the grounds on which the Privy Council will

entertain appeals from Commonwealth countries in criminal matters are limited. The

Privy Council has established the rule that it will not act as a court of criminal

appeal and has restricted appeals in criminal matters to such cases where, in ite

opinion, some issues of constitutional importance arise or where a "substantial

injustice" has occurred. The Privy Council's jurisdiction is, therefore, very

narrow. In applying its narrow test, it dismissed the author's petition.

6.3 With respect to the alleged violation of article 14 of the Covenant, counsel

specifies that the author was deprived of a fair trial within the meaning of

article 14, paragraph 1, because the judge never put to the jury any of the

evidence relating to the murder but only evidence relating to the robbery. His

subsequent appeal to the Jamaican Court of Appeal, according to counsel, was never

determined on the merits because of the concession made by the lawyer. This

situation, it is submitted, also constitutes a violation of safeguard No. 4 of

Economic and Social Council resolution 1984/50 of 25 May 1984 on "Safeguards

guaranteeing protection of the rights of those facing the death penalty", which

states: "Capital punishment may be imposed only when the guilt of the person

-~87-

charged in based upon clear and convincing evidence leaving no room for an

alternative explanation of the facts."

6.4 Counsel submits that the State party further violated article 14,

paragraph 3 (da), of the Covenant, because the author was net present during the

hearing of his appeal and did not have legal assistance of his own choosing. The

lawyer who appeared for the author before the Court of Appeal had no retainer to

act, nor 41d he seek to obtain the author's express consent to appear before the

Court of Appeal and state that there were no grounds of appeal. In these

ciroumstances, the author should have been provided with an opportunity to obtain

the services of a different attorney. It is submitted that an individual's right

to legal representation of his own choosing does not only comprise the trial but

also subsequent appellate procedures. Moreover, given that the author's lawyer

failed to represent him, the author should have been allowed to be present during

the hearing of the appeal and allowed to argue his own case, if the legal aid

lawyer was not prepared to do so. Because the author was denied representation of

his choosing and was not present at the appeal, he was aleo deprived of his right

to an effective review of his conviction and sentence by the Jamaican Court of

Appeal, in violation of article 14, paragraph 5.

6.8 With respect to the alleged violation of articles 6 and 7 of the Covenant,

counsel recalls that the author has been confined to death row since his conviction

om 26 March 1985. it is claimed that the decision as to whether inmates on death

row are to be executed does not depend on legal grounds, but is a function of

political considerations, and thus that the author's continued uncertainty as to

whether or not a warrant for his execution will be issued, and the concomitant

mental anguish, amounts to cruel, inhuman and degrading treatment in violation of

article 7. It is submitted that the resumption of executions after a long delay

unconnected with legal arguments or procedures would amount to a violation of

article 6.

7.1 The Committee ascertained, as it ie required to do under article 5,

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

examined under another procedure of international investigation or settlement.

With regard to article 5, paragraph 2 (b), the Committee concluded, on the basis of

the information provided by the parties, that available domestic remedies had been

exhausted.

7.2 On 30 March 1989, the Human Rights Committee therefore declared the

communication admissible.

8.1 In ite submission under article 4, paragraph 2, dated 15 June 1989, the State

party contends that the fact that the author's petition for special leave to appeal

to the Judicial Committee of the Privy Council was dismissed does not necessarily

imply that all available domestic remedies have been exhausted. It points out that

the rights under the Covenant which the author alleges have been violated are

guaranteed to every Jamaican citisen under Chapter III of the Jamaican

Constitution. Thus, section 20, paragrap) 1, provides:

“Whenever any person is charged with a criminal offence he shall, unless the

charge is withdrawn, be afforded a fair hearing within a reasonable time by an

independent and impartial court establisaed by law."

Section 20, paragraph 6, provides:

"Every person who ie charged with a criminal offence:

(a) Shall be informed as soon as reasonably practicable, in a language which

he understands, of the nature of the offvence charged;

(b) Shall be given adequate time and facilities for the preparation of his

defence;

(c) Shall be permitted to defend himself in person or by a legal

representative of his own choice;

(d) Shall be afforded facilities to examine in person or by his legal

representative the witness called by the prosecution before any court and

obtain the attendance of witnesses, subject to the payment of their

reasonable expenses, and carry out the examination of such witnesses to

testify on his behalf before the court on the same conditions ag those

applying to witnesses called by the prosecution; and

(e) Shall be permitted to have assigned to him without payment the assistance

of an interpreter if he cannot understand the English language."

6.2 The State party adds that the right to life is protected by section 14 of the

Constitution, while protection from inhuman or degrading punishment or other

treatment is afforded by section 17. Under section 25, anyone who alleges that any

of the rights protected by Chapter III have been, or are likely to be contravened

in relation to him, may apply to the Supreme (Constitutional) Court for redress.

An appeal lies from the decision of the Supreme Court to the Court of Appeal and

from the decision of the Court of Appeal to the Judicial Committee of the Privy

Council,

6.3 The State party concludes that the right to constitutional redress is a

distinct action from an appeal to the Judicial Committee of the Privy Council in a

criminal case. Since the author has failed to take steps to pursue his

conatitutional remedies, the State party argues that his communicaticn is

inadmissible on the ground of non-exhaustion of domestic remedies.

9.1 In her comments, dated 19 December 1989, counsel contends that the State party

has failed to comply with the Committee's request of 30 March 1989 to provide

explanationa or statements on the merits of Mr. Reid's case, pursuant to article 4,

paragraph 2, of the Optional Protocol. Instead, it tried to revisit the

Committee's admissibility decision by arguing that Mr. Reid had failed to exhaust

domestic remedies. According to counsel, the State party could have put forward

ita arguments in ite submission under rule 91; at this stage, it is no longer open

to the State party to introduce new arguments on admissibility, or at least to do

so before providing the information requested by the Committee in its admissibility

decision. In her opinion, a different view would be contrary to rule 93,

paragraph 4, of the Committee's rules of procedure.

9.2 Counsel adds that the State party's new argunents on admissibility miss the

point since article 5, paragraph 2 (b), of the Optional Protocol does not require

individuals to prove that they have exhausted every possible domestic course of

action which potentially might constitute a remedy. Only such remedies as are both

available and effective must be pursued. Accordingly, it should be reasonably

aseumed that the remedy which the Jamaican Government claims remains open to the

author would redress the alleged violations. But this would not be the case if

@stadlished case law ran counter to the conclusion sought by the author, as is the

situation in the instant case. She notes that the State party should provides, in

Support of its argument, clarifications on whether or not there is any case law

which would assist her with her case, given that Mr. Reid is now being aeksd to

argue certain points before a court of lesser jurisdiction in Jamaica, which he had

already argued before the Judicial Committee of the Privy Council. Counsel

contends that the Judicial Committee, if seized of the constitutional case, would

most likely confirm its earlier decision in the case. Moreover, a court of lesser

jurisdiction in Jamaica would be bound by the Judicial Committee's earlier

Gecision. Finally, counsel argues that the constitutional remedy is not only an

ineffective but also an unavailable remedy, since it is virtually impossible to

secure legal representation in Jamaica to argue constitutional cases on a pro bono

basis.

10.1 The Human Rights Committee has considered the present communication in the

light of the information made available to it by the parties, as provided in

article 5, paragraph 1, of the Optional Protocol.

10.2 The Committee has taken due note of the State party's contention that with

respect to the alleged violations of articles 6, 7 and 14 cf the Covenant, domestic

remedies have not been exhausted by Mr. Reid. It takes this opportunity to expand

upon its admissibility findings.

10.3 The Committee has taken note of the State party's contention that the

communication is inadmissible because of the author's failure to pursue

constitutional remedies available to him under the Jamaican Constitution. In this

connection, the Committee observes that Section 20, paragraph 1, of the Jamaican

Constitution guarantees the right to a fair trial, while Section 25 provides for

the implementation of the provisions guaranteeing the rights of the individual.

Section 25, paragraph 2, stipulates that the Supreme (Constitutional) Court may

“hear and determine" applications with regard to the alleged non-observance of

constitutional guarantees, but limite ite jurisdiction to such cases where the

applicants have not already been afforded “adequate means of redress for the

contraventions alleged” (Sect. 25, para. 2, in fine). The Committee notes that the

State party was requested tc: clarify, in a number of interlocutory decisions,

whether the Supreme (Constitutional) Court has had the opportunity to determine the

question pursuant to Section 25, paragraph 2, of the Jamaican Constitution, whether

an appeal to the Court of Appeal and the Judicial Committee of he Privy Council

constitute “adequate means of redress" within the meaning of Section 25,

paragraph 2, of the Jamaican Constitution. The State party has replied that the

Supreme Court has so far not had said opportunity. Taking into account the State

party's clarification, together with the absence of legal aid for filing a motion

in the Constitutional Court and the unwillingness of Jamaican counsel to act in

this regard without remuneration, the Committee finds that recourse to the

Constitutional Court under Section 25 of the Jamaican Constitution is not a remedy

available to the author within the meaning of article 5, paragraph 2 (b), of the

Optional Protocol.

10.4 Finally, the author's claim that no legal aid is provided to those who

envisage filing a constitutional motion and who cannot afford legal representation

has remained uncontested. As Mr. Reid is unable to afford legal representation, it

-90-

follows that even if a constitutional motion were considered an effective ramedy,

it would not be available to the author, in fact if not in law.

10.5 The Committee hae also taken note of the State party's contention that the

Committee's established jurisprudence on article 5, parayraph 2 (b), of the |

Protocol, namely that domestic remedies must be both available and effective, is

merely the Committee's own interpretation of this provision. a/ It reiterates, in

this context, that the local remedies rule 4oes not require the resort to appeals

which objectively have no prospect of success, which is an established principle of

international law and of the Committee's jurisprudence.

10.6 For the reasons set out above, the Committee finds that a constitutional

motion is not 4 remedy that the author would have to exhaust for purposes of the

Optional Protocol. It therefore concludes that there is no reason to revise its

decision on admissibility of 30 March 1989.

11.1 With respect to the alleged violation of article 14, three principal issues

are before the Committee: (a) whether the alleged inadequacy of the judge's

summing-up to the jury in the trial before the Home Circuit Court amounted to a

denial of a fair trial; (b) whether the author had adequate time and facilities for

the preparation of his defence and (c) whether the author's representation before

the Court of Appeal by an attorney not of his choosing constituted a violation of

article 14, paragraph 3 (da).

11.2 Concerning the first issue under article 14, the Committee reaffirms that it

is generally for the appellate courts of States parties to evaluate the facts and

the evidence in a particular case. It is ~~, in principle, for the Committee to

review specific instructions to the jury by the judge in a trial by jury, unless it

can be ascertained that the instructions to the jury were clearly arbitrary or

amounted to a denial of justice. The Committee does not have sufficient evidence

that the trial judge's instructions suffered from such defects.

11.3. The Committee notes that the State party has not denied the author's claim

that. the court failed to grant counsel sufficient minimum time to prepare his

examination of witnesses. This amounts to a violation of article 14, paragraph

3 (b), of the Covenant.

11.4 Concerning the issue of the author's representation before the Court of

Appeal, the Committee reaffirms that it is axiomatic that legal assistance must be

made available to a convicted prisoner under sentence of death. b/ This applies to

the trial in the court of first instance as well as to appellate proceedings. In

the author's case, it is uncontested that legal counsel was assigned to him for the

appeal. What is at issue is whether the author had a right to contest the choice

of his court-appointed attorney, and whether he should have been afforded an

opportunity to be present during the hearing of the appeal. The author's

application for leave to appeal to the Court of Appeal, dated 6 April 1985,

indicates that he wished to be present for the hearing of his appeal. However, the

State party did not offer this opportunity, since legal aid counsel had been

assigned to him. Subsequently, his counsel considered that there was no merit in

the author's appeal and was not prepared to advance arguments in favour of it being

grantec thus effectively leaving him without legal representation. In the

circumstances, and bearing in mind that this is a case involving the death penalty,

the Committee considers that the State party should have appointed another lawyer

for his defence or allowed him to rupresent himself at the appeal proceedings. To

-91-

the extent that the author was denied effective representa*ion at the appeal

provteeding 4, the requiremants of article 14, paragraph 3 (d), have not been met.

11.5 The Committee is of the opinion that the impoaition of a sentence of death

upon the conclusion of a trial in which the provisions of the Covenant have not

beou respected constitutes, if no further appeal against ‘:he sentence is available,

a violation of article 6 of the Covenant. As the Cosmitriee noted in ite general

comment 6 (19), the provision that a sentence of death may be imposed only in

accordance with the law and not contrary to the provisions of the Covenant implies

that "the procedural guarantees therein prescribed must be observed, including the

right to a fair hearing by ai. independent tribunal, the presumption of innocence,

the minimum guarantees for the defence, and the right to review by a highec

tribunal". In the preaent case, since the final sentence of death was passed

without having met the requirements for a fair trial set forth in article 14, it

must. be concluded that the right protected by article 6 of the Covenant has bewn

violated.

11.6 As to the allegation tha. the delays in the execution of the sentence passed

on the suthor amount to a violation of articlo 7 of the Covenant, and that the

author's execution after the delays encuuntered would amount to an arbitrary

deprivation of life, the Committee reaffirms its earlier jurieprudence pursuant to

which prolonged judicial proceedings do not per se constitute cruel, inhuman or

degrading treatment even if they can be a source of mental strain fos convicted

prisoners. However, che situation may be different in cases involving capital

punishment, although an assessment of the circumstances of each case would be

necessary. g/ In the present case the Committee does not find that the author has

sufficiextiy substantiated his claim that. delay in judicial procvedings constituted

for him cruel, inhuman and degrading treatmont under article 7.

12.1 The Human Rights Committee, acting under article 5, paragraph 4, of the

Optional Protoccl to the International Covenant on Civil and Political Rights, ie

of che view that the facts, as found by the Committee, disclose a violation of

articles 6 and 14, paragraph 3 (b) and (d), of the Covenant.

12.2 It io the view of the Committes that, in capital punishment cases, the duty

of Ste*<es parties to observe rigorously all the guarantees for a fair trial set out

in article 14 of the Covenant is even more imperative. The Committee is of the

view chat Mr. Carlton Ruid, a victim of a violation of articles 6 and 14,

paragraph 3 (b) aad (d), is entitle: to a remedy entailing his release.

i3. The Committee also takes this opportunity to express concecn about the

practical operation of the system of legal aid undex the Poor Prisoners’ Defence

Act. On the basis of the information before it, the Committee considers that this

system, in ites curreut form, does not appear to operate in ways that would enable

legal zepresentatives working on legal aid assignments to discharge themselves of

their duties and responsibilities as effectively as the interests of justice would

warrant. The Committee vonsiders that in cases involving capital punishment, in

particular, legal aid should enable counsel to prepare his client's defence in

circumstances that can ensure justice. Th.s does include provision for adequate

remuneration for legai aid. While the Committee conceder that the Stat~ party's

authorities are in principle competent ~o spell out thy details of the Poor

Prisoners’ Defence Act, and while it welcomes recent improvements in the terms

under which legal aid is made available, it urges the State party to reviuw its

legal aid system.

~92-

14. The Committee wouid wish to receive information on any relevant measures

taken by the State party in respect of the Committee's viers.

(Done in English, French, Russian and Spanish, the English text being the origina2

version.)

Notes

a/ State party's submission dated 25 May 1989 in comnunication No. 249/1987

(T._P._v. Jamaica), not yet reported.

h/ See communication No. 223/1987 (Robinson vy. Jamaican), final views adopted

on 30 March 1989, para. 10.3.

a/ 6See communication Nos. 210/1986 and 2265/1987 (Earl Pratt and Ivan Morgan

vy. Jamaica), tinal views adopted on 6 April 1989, para. 13.6.

-93-

APPENDIX

The Vienna Convention on the Law of Treaties states, inter alia, that a treaty

provision ehall be interpreted in accordance with the ordinary meaning to be given

to ita terms, placed in their context and in the light of the treaty's object and

purpose. The object and purpose of article 6, paragraph 2, of the Covenant is

obvious. It is to circumscribe the imposition of death sentences. The travaux

Airag characterise it as a yardstick to which national law authorising the

imposition of the death sentence must conform. This yardstick consists of a number

of prerequisites, some of which reflect guarantees also laid down in other articles

of the Covenant. The prerequisites are: (a) “only for the most serious crimes")

(b) “only in accordance w th the law in force at the time of the commission of the

crime", cf. article 15, paragraph 1; (c) "only pursuant to a final judgment

rendered by a competent court", cf. article 14, paragraph 1. The same requirements

are to be found in article 4 of the American Convention on Human Rights, which

reads: the death penalty "may be imposed only for the most serious crimes and

pureuant to a final judgment rendered by a competent court and in accordance with a

law establishing such punishment, enacted prior to the commission of the crime."

Article 2 of the European Convention for the Protection of Human Rights and

Fundamental Freedoms is less complete. It merely states that "no one shall be

deprived of his life intentionally save in the execution of a sentence of a court

following conviction of a crime for which this penalty is provided by iaw." Thus

the Convention provision focuses more than similar provisions on the purpose to

protect an individual from any intentional deprivation of his life by State

organs. Article 6, paragraph 2, of the Covenant adds a prerequisite that is not

included in either the European or the American Conventions, namely (d) “not

contrary to the provisions of the present Covenant and to the Convention on the

Prevention and Punishment of the Crime of Genocide”. The latter Convention

includes provisions that prohibit any killing - i.e. also execution pursuant to a

death sentence ~ that can be subsumed under the term genocide. Article 6,

paragraph 8, of the Covenant prohibits in addition tho imposition of a sentence of

death for crimes committed by persons below eighteen years of age. Thus the

prerequisite (d) evidently in the first plave aims at those provisions in the

Covenant and the Genocide Convention dealing with the imposition and execution of

death sentences. It is, however, worded in such general terms that it might be

understood as applying to other provisions of the Covenant as well, and not merely

to provisions which would apply to the imposition itself of a death sentence, for

inetauce article 26. The Committee has in this case interpreted it that way and

found that a violation of the provisions in article 14 about a fair trial has to be

looked upon as a violation also of article 6, paragraph 2, when the trial ended

with a death sentence. I cannot find grounds for such an interpretation for the

following reason: in the context where this prerequisite has been placed - i.e in

paragraph 2 and not in paragraph 1 - and in the light of the object and purpose of

that paragraph, it is difficult to assume that it should be given an independent

significance apart from its specific purpose (gsragraph 5 and article 26

o»deervance) and that it adds ‘o what already is made clear by article 6,

paragraph 5. The travaux proparatoirea do not provide any useful guidance;

moreover, any State power to Investigate a crime that may lead to a death sentence,

-94-

indict a person for such a crime and conduct a trial against. him is outside the

focal point of article 6, paragraph 2, that deals only with the power to sentence

an individual to death. The exercise of these related powers will then inetead

fall under paragraph 1, which provides that no one shall be arbitrarily deprived of

his life, a term which according to the travaux préparatoires was preferred to

‘without due process of law". In my opinion violations of the safeguards for a

fair trial in article 14 in e capital punishment cise cannot be deemed to also

constitute violations of article 6, paragraph 2. However, IT agree with the

Committee that unfairness in a capital punishment case is of utmost gravity. When

someone's life is at atake, all possible precautions and safeguards must come into

full play. A breach of article 14 in such a case therefore constitutes a

particularly grave violation. But, it cannot, even for that reason, be deemed to

constitute a violation of article 6, paragraph 2. It is only - and only then - if

the trial does not display the characteristics of a real trial but rather those of

a mock trial, lacking the paramount. characteristics of due process of law, that a

violation of article 6 of the Covenant besides a violation of article 14 of the

Covenant may arise, namely a violation of article 6, paragraph 1. The trial in

this case undoubtedly was a very unsatisfactory one, but the information available

does not, in my view, justify the conclusion that the elements of unfairness were

such that the trial may be looked upon as arbitrary. I note in this connection

that the Judicial Committee of the Privy Council received a petition from the

author for special leave to appeal because of the trial deficiencies, but that the

Judicial Committee did not grant leave. My conclusion therefore is that, just as

under the American and European Conventions, violations of the fair trial

sateguards cannot as such at the same time be deemed to be violations of provisions

concerning the imposition of death sentences.

Bertil WENNERGREN