CCPR/C/39/D/258/1987

F. Communication No. 2589/1987. L. R. and T. 4. v. Jamaion any

(Necision of 13 July 10090, adopted at the thirty-ninth

agasion:

Submitted by: L. R. and T. W. (names deleted]

Allaged viatima: The authors

State party concerned: Jamaica

Date of communication: Undated (recoived on 15 December 1987)

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

Covenant on Civil and Political Righte,

Maating on 13 July 1990,

Adopta the following:

Reciaion on admissibility

1. The authors of the communication (initial letter received on 15 December 1987)

subsequent submisaions dated 9 March, 9 June and 4 October 19868) are L. R. and

T. W., two Jamaican citisens awaiting execution at St. Catherine District Prison,

Jamaica. t

2.1 The authors state that on 4 July 1980 they were arrested and placed on an

identification parade on suspicion of involvement in a murder. While Mr. L. R. was

not identified, Mr. T. W. was. They were told by police that a man named D. J. had

associated them with the crime. The authors allege thac this man was forced to

give their name to the police. They were subsequently tried, convicted and

sentenced to death on 17 May 1982 in the Home Circuit Court of Kingston.

2.2 The Jamaican Court of Appeal dismissed the authors' appeal on

24 October 1984. The authors estate that they have not been inforned whether they

would still be able to petition for leave to appeal to the Judicial Committee of

the Privy Council. If this were to be the case, it would have to be in forma

pauperia because of their precarious financial situation. They state that the

Jamaican authorities are well aware of this fact, since they had to assign legal

aid to the authors on the occasion of their trial. Since the dismissal of the

appeal, the authorities have failed to assign legal aid to the authors, in spite of

the fact that they have repeatedly expressed an interest in appealing their case

further. This, they argue, demonstrates that the Jamaican Government has failed to

fulfil ite obligations under article 14, paragraphs 3 (c) and (4), of the

International Covenant on Civil and Political Rights, especially inasmuch as the

State party's obligation to try the authors without undue delay is concerned.

3. By decision of 15 January 1988, the Special Rapporteur of the Human Rights

Committee for cases involving the death penalty transmitted the communication, for

information, to the State party, requesting it, under rule 66 of the Committee's

rules of procedure, not to carry out the death sentence against the authors before

the Comnittee had had an opportunity to consider further the question of the

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admissibility of the communication. The authors were requested to provide a number

of clarifications concerning their case.

4.1 Ina letter dated 9 March 1988 the authors state that during the trial before

the Home Circuit Court in Kingston, they were accused of having killed, on

20 June 1980 in the Parish of St. Agnew, one S. H.. One witness against them

testified that he did not see who had fired the fatal shot. The police had told

them, however, that a Mr. D. L. had made a statement incriminating them, and that

it was on the basis of this statement that they had been arrested. On the occasion

of the identification parade, the witness pointed out T. W., but not L. R.. The

authors do not recall the date of the identification parade, nor the date when they

were first brought to court after they had formally been charged with murder.

T. W. recalls that he was not represented when the identification parade was held.

L. R. states that at the police station, the police “tricked” him into signing a

statement implicating him and T. W. as parties to the crime. He claims that ha

never made any statement to the police. At the time, he was unable to read and

write) this was known to the police officer, who did not read out the incriminating

atatement signed by L. R.. The authors state that the police brought D. J. to the

preliminary hearing in the Gun Court. He testified that he had not given the

police any statement and that he had been beaten at the police station. The

authors note that, subsequently, the police did not bring D. J. to testify before

the Home Circuit Court.

4.2 Both authors state that they did not have adequate opportunities to consult

with their lawyers prior to the hearing of the appeal, because the Jamaican

authorities only informed them of the date of the appeal and the names of the

lawyers assigned to their case on the day of the hearing. It appears that neither

the authors nor their representatives sought to have witnesses testify on their

behalf. Since the dismissal of the appeal on 24 October 1984, the authors have not

received the court’s written judgement. They acknowle: ge that they were

represented both during the trial and during the appeal.

4.3 The authors further claim that, since the dismissal of their appeal, they have

not been informed as to whether they are entitled to legal assistance for purposes

of a petition for leave to appeal to the Judicial Committee of the Privy Council,

although they have requested on two occasions that legal aid be assigned to them

for that purpose.

5. On 22 March 1988, the State party informed the Committee that the

communication was inadmissible because of the authors’ failure to exhaust domestic

remedies, without specifying further which remedies had not been exhausted. By

decision of the same day, the Working Group of the Committes requested the State

party, under rule 91 of the rules of procedure, to provide further information and

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

It requested the State party, under rule 86, not to carry out the death sentence

egainst the authors while their communication was under consideration by the

Committee.

6. In its submission under rule 91, dated 20 July 1988, the State party

reiterates that the authors have failed to exhaust all available domestic remedies,

as required by article 5, paragraph 2 (b), of the Optional Protocol. It adds that

they have a right to appeal to the Judicial Committee of the Privy Council under

Section 110 of the Jamaican Constitution. The State party further contends that

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legal aid would be available to the authors for that purpose pursuant to Section 3,

paragraph 1, of the Poor Prisoners’ Defence Act.

7. Commenting on the State party's submission, the authors, in a letter dated

4 October 1968, reaffirm that they remain uncertain sbout their prospects of

pursuing a petition for special leave to appeal to the Judicial Committee of the

Privy Council. They indicate that they have been informed that there would not be

any merit in pursuing such an appeal. Furthermore, they emphasise that the State

party has never informed them that legai aid would be available for the purpose of

an appeal to the Privy Council. They consider that it is because of their

submissions to the Human Rights Committee that the State party now acknowledges the

existence of this possibility.

8. By further submissions, dated 27 January and 15 August 1989, the authors state

that they have been endeavouring to obtain legal assistance from a London law firm

for purposes of a Privy Council application. Accordingly, they request the

Committee to defer consideration of their case, pending the outcome of the petition.

9.1 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.

9.2 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.

9.3 With regard to the requirement of exhaustion of domestic remedies, the

Committee has taken note of the State party's contention that the communication is

inadmissible because of the authors’ failure to petition the Judicial Committee of

the Privy Council for special leave to appeal, pursuant to Section 110 of the

Jemaican Constitution. It observes that the authors, although claiming that there

would be no merit in pursuing such a petition, has secured pro bone legal

representation from a London law firm for this purpose, after eubmitting their

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

to investigate the possibility of filing a petition for special leave to appeal on

their behalf. While expressing grave concern about the apparent unavailability of

& reasoned judgment of the Jamaican Court of Appeal in the case, the Committee

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

Committee of the Privy Council, even without a written judgment of the Court of

Appeal, must be considered a priori futile. It therefore finds that the

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

met.

10. The Human Rights Committees therefore decides:

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

of the Optional Protocol;

(b) That the State party be requested to make the written judgment uf the

Court of Appeal available to the authors without further delay, so as to permit an

effective recourse to the Judicial Committee of the Privy Council, and to onsure

that adequate aid be made available to the authcrs;

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(c) That, since this decision may be reviewed under rule 92, paragraph 2, of

tae Com ittes'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

inadmissibility no longer appiy, the State party is requested, taking into acocgunt

the spirit and purpose of rule 86 of the Committee's rules of procedure, not to

carry out the death sentence against the authors before they have had a reasonable

time, after completing the effective dcmestic remedies available to them, to

request the Committee to review the present decision;

(a) That this deciainn shall be transmitted to the State party and to the

authors.

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