CCPR/C/39/D/259/1987

G. Communication No. 2569/1087, D, BH. v. Jamaica

thirty-ninth sesai..)

Submitted by: D. B. [name deleted]

Alleged victin: The author

State party concerned: Jamaica

Date of communication: 19 November 1987 (date of initial letter)

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

Covenant on Civil and Political Rights,

Meeting on 13 culy 1990,

Adopta the following:

Decision on admissibility

i. The author of the communication (initial letter dated 19 November 1987)

several gubsequent letters) is D. B., a Jamaican citisen awaiting execution at

Bt. Catherine District Prison, Jemaica. Ha claims to be the victim of violations

of his human rights by the Governmext of Jamaica.

2.1 The author estates that he was charged with the murder, on 24 November 1980, of

one H. P., convicted and sentenced to death on 13 Juiy 1983. He claims to be

innocent and states that, although he was present at the scene of the crime, he did

not participate in the killing but actually risked his own life by pleading with

the killers that Mr. Patton be spared. as can be allegedly confirmed by witnesses.

No details are provided about the circumstances of the author's trial - it is

merely stated that the authur was assisted by a legal aid attorney.

2.2 The Jamaican Court. of Appeal uismissed the author's appeal on

9 December 1985. For his appeal, the author was also represented by s legal aid

attorney. The author had requested to be present during the hearing of the appeal

but allegedly was not granted the right to do go.

2.3 The author further estates that since the dismissal of the appeal, he has been

unable to pursue his case furthe. He wrote to the Supreme Court in October 1986,

requesting the transcripts of ev. wnce in his case, both from the trial and the

appeal, but did not receive either. A second letter was sent to the Supreme Court

in September 1987; this time the author received a copy of the Notes of Evidence of

hie trial. At the same time, he was informed that the Court of Appeal had not yet

issued a written judgment. This, the author claims, is the situation with regard

to many judgments of the Court of Appeal in capital cases.

2.4 With respect to a petition for leave to appeal to the Judicial Committee of

the Privy Council, the author alleges that the Jamaican Government doe: not assist

death row inmates in bringing their cages before the Judicicl Committee of the

Privy Council. He claims that since he canrot afford a legal rapresentative, he is

unable tc submit his case to the Privy Council, and that if his case cannot be

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brought before that body, the Government will not exercise its prerogative of

mercy. He further refere to the case of one N. C., an inmare executed on

12 November 1987, who had allegediy been unable to exhaust all available domestic

remedies because of lack of means to pay for a lawyer to represent him before the

Judicial Committee of the Privy Council.

2.6 The author, finally, claims that the prolonged time spent on death row - since

July 1983 ~ constitutes degrading and inhuman treatment, without how vez, further

substantiating this allegation.

3. By decision of 9 February 1988, the Speciai Rapporteur of the Human Rights

Committee for communications involving the death penalty tranemitted the

communication, for informatica, to the State party, requesting it, under rule 66 of

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

before the Committee 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 provide the Committee with several clarifications concerning

the conduct of his trial and appeal and to forward to the Committee a copy of the

Notes of Evidence. By further decision of 22 March 1988, the Working Group of the

Human Rights Committee reiterated the Special Rapporteur's request under rule 86

and asked the State party vo provide information and observations relevant to the

question of the admissibility of the communication. The State party was further

requested to provide the Committee with the texts of the written judgments in the

case and to clarify whether the author retained the possibility to petition the

Judicial Committee of the Privy Council for special jeave to appeal.

4.1 Im three submissions dated 19 and 26 February and 18 April 1988, the author

replies to the Special Rapporteur's request for clarifications. He estates that on

24 November 1980, in the District of Douce Pass, several men forced him to lead

them to an isolated house in James Hill. Ths men broke into the house, demanded

money and threatened to shoot the owner, Hedley Patton. Appeale by the author to

leave the man alone were unsuccessful. In the end, the men shut H. P. and left the

house with what they could find. The next morning, the author temporarily left the

area where he resided. Upon his return, he was informed that the police were

looking for him. Thst very night, on 29 November 1980, the police came to the

house and arreste him. He made a written statement on 29 December 1980, but since

his writing and reading abilities were deficient at the time, he requested, on

1 January 1961, that the statoment be rewritten, The author states that he was

placed on an identification parade without legal representation. One witness

purportedly identified him whereas his co-defendant, A. H., was identified by two

witnesses. The author indicates that he was informed of the charges against him on

8 January 1981, and that he was brought for the first time before a Magistrate on

14 January 1981. During the preliminary enquiry, as well as during the trial and

the appeal, he was represented by a legal aid attorney.

4.2 The trial did not start until 5 July 1983. The author claims that the

prosecution witnesses merely testified that they had identified the author as one

of the men who had been at the house at the time of the murder. He does not recall

that any of them testified that they had actually seen him commit any crime.

According to him, they mainly incriminated his co-defendant. Two witnesses

testified that they had heard someone beg for the deceased's life. The author

reiterates that it was he who had pleaded for the victim's life and indicates that

the witnesses could not ag.ee among themselves on that particular point. On

12 July 1983, the author's representative made a no-case submission. but. the judge

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ruled against him. The author therefore took the stand and made a aworn

statement. According to him, hia lawyer further requested the judge to subpoena

the author's father to attend court and asked that a police inspector agaist in

bringing him to court. He explains that his parents are poor and cannot afford the

fare to come to court) although his father wanted to attend the court sessions, he

was unable to do so.

4.3 The author states that he was able to consult with hig lawyer during the

trial, but only once while he was awaiting the outcome of his appeal. He indicates

that the prosecution's witnesses were cross-examined but doubts whether their

examination was thorough enough. He further claims that, as his father was the

only witness called to testify on his behalf and was unable to attend court, there

were no witnesses who testified on his behalf.

4.4 According to the author, he has lost contact with his legal aid attorney since

the dismissal of the appeal and is now without a legal representative. He wrote to

the Jamaican Bar Association, with a request for legal assistance and with a

request for an investigation of his case. He received one reply, on 11 March 1987,

informing him shat a letter had been sent by the Bar Agsociation to Mr. F. P. on

5 March 1987. On 10 February 1988, the author also received a letter trom a firm

of solicitors with a plea to the Government not to execute the author, because of

the author's request to have his case submitted to the Judicial Committee of the

Privy Council.

4.5 With respect to the possibility of petitioning the Judicial Committee of the

Privy Council for leave to appeal, the author points out that if his case is sent

to the Privy Council] without the written judgment of the Court of Appeal, the Privy

Council will simply dismiss his petition and return the case to Jamaica. He

further indicates that he is unable to afford the services of a lawyer to take his

case to the Privy Council; this, he alleges, has been the situation of many inmates

on death row who intended to petition the Privy Council for leave to appeal but

were unable to do so, and who were subsequently executed.

4.6 In the author's opinion, the events described above constitute a violation by

Jamaica of article 14, paragraphs 3 (a) and (e), and article 14, paragraph 5, of

the Covenant.

5. In its submission under rule 91 of the rules of procedure, dated

23 January 1989, the State party contends that the communication is inadmissible on

the ground of non-exhaustion of domestic remedies, because the author's “case has

not been adjudicated upon by the Judicial Committee of the Privy Council, Jamaica's

‘igheet appellate Court".

6.1 In his reply, dated 25 February 1989, the author reiterates that he cannot

afford the kind of legal assistance required for his case to be submitted to the

Privy Council. He again refers to the case ot N. C. as well as to that of two

other inmates, who allegedly were made to pay forty thousand Jamaican dollars to

have their petition to the Privy Council attended to properly. Finally, he clains

that his co-defendant, A. H., has been informed by the Jamaica Council for Human

Rights that their case lacked merit to justify filing an appeal to the Privy

Council. Ina further letter dated 18 May 1989, the author indicates that he has

now obtained the services of a London iaw firm to take his case to the Privy

Council and requests the Committee to defer consideration of his communication

until the Privy Council has heard his petition for special leave tc appeal.

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6.2 In a further submission, dated 12 August 1989, the author states that on

20 April 1989, the Jamaica Council for Human Rights informed him that the court

papers in his case had been sent to his representatives in London. He indicates

that he has not, since then, received any further indication about the status of

this petition and requests the Committee to defer consideration of his case.

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

Committee must, iv accordance with rule 87 of ite rulea of procedure, decide

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

7.2 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.

7.3 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 author's failure to petition the Judicial Committee of

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

Jamaican Constitution. It observes that the author, although claiming that there

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

representation from a London law firm for this purpose, after submitting his

communication to the Human Rights Committee. While expressing grave concern about

the apparent unavailability of a 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.

8. The Human Rights Committee 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 of the

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

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

that adequate legal aid be made available to the author;

(c) That, since this 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

inadmissibility no longer apply, the State party is 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 against the author before he has had a reasonable

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

the Committee to review the present decision;

(4) That this decision shall be transmitted to the State party and to the

author.

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