CCPR/C/43/D/240/1987

Distr.

RESTRICTED */

CCPR/C/43/D/240/l987

14 November 1991

ORIGINAL: ENGLISH

_________________________________________________________________

HUMAN RIGHTS COMMITTEE

Forty-third session

DECISIONS

Communication No. 240/l987

Submitted by :

Willard Collins (represented by

counsel)

Alleged victim :

The author

State party :

Jamaica

Date of communication :

25 August 1987 (initial submission)

Documentation references

: Prior decisions - CCPR/C/31/D/240/1987

(combined rule 86,

rule 91 decision,

dated 2 November

1987)

-

CCPR/C/WG/32/D/240/1987

(further Working Group

combined rule 86,

rule 91 decision,

dated 22 March 1988)

- CCPR/C/D/34/240/1987

(decision on

admissibility, dated

2 November 1988)

- CCPR/C/37/D/240/1987

(interlocutory

decision

dated 2 November

1989)

- CCPR/C/42/D/240/1987

(further

interlocutory

decision, dated

24 July 1991)

Date of adoption of

Views under article 5(4),

of the Optional Protocol

: 1 November 1991

On 1 November 1991, the Human Rights Committee adopted its

Views under article 5, paragraph 4, of the Optional Protocol in

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Annex

Page 1

respect of communication No. 240/1987. The text of the Views is

appended to the present document.

[Annex]

*/

Made public by decision of the Human Rights Committee.

DEC240.43

ANNEX

Views of the Human Rights Committee under article 5, paragraph 4,

of the Optional Protocol to the International Covenant

on Civil and Political Rights

- Forty-third session -

concerning

Communication No. 240/1987

Submitted by :

Willard Collins

(represented by counsel)

Alleged victim :

The author

State party :

Jamaica

Date of communication :

25 August 1987

(initial submission)

Date of the decision on admissibility

:

2 November 1988

The Human Rights Committee

, established under article 28 of

the International Covenant on Civil and Political Rights,

Meeting on 1 November 1991,

Having considered communication No. 240/1987, submitted to

the Committee by Willard Collins 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

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State party,

Adopts its Views under article 5, paragraph 4, of the

Optional Protocol. **/

**/

An individual opinion submitted by Ms. Christine Chanet

and Messrs. K. Herndl, Fr. Aguilar Urbina and B. Wennergren is

appended.

The facts as presented by the author

:

1. The author of the communication dated 25 August 1987 is

Willard Collins, a Jamaican citizen currently awaiting execution

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

victim of a violation by Jamaica of articles 7, l0, and 14,

paragraphs 1, 2, and 3(e), of the International Covenant on Civil

and Political Rights. He is represented by counsel.

2.1 The author is an ex-corporal in the Jamaican police force.

He was arrested on 16 June 1981 in connection with the murder, on

23 November 1980, of one Rudolph Johnson in the parish of St.

Catherine, Jamaica. The prosecution contended that the author

shot the victim with his service weapon because he owed him a

substantial amount of money, and that he had procured the

assistance of a taxi driver, one C.E., to drive him and the

victim to the scene of the crime and to assist with the disposal

of the body.

2.2 Initially, C.E. had been arrested on 28 November 1980 and

detained in connection with the murder. Some months later, he

was released upon direction of the investigating officer, one

Detective Sergeant R.G., who had taken charge of the police

investigations on his own initiative, in the author's opinion

because he was C.E.'s brother-in-law and the father of a girl

born to C.E.'s sister. C.E. later became the prosecution's

principal witness and only purported eye-witness to the crime.

2.3 The author was initially brought before the Portland

Magistrates Court in connection with his application for bail and

for directions as to the most appropriate venue for the

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preliminary hearing. The Magistrate granted the author's

application for a transfer of the venue of the preliminary

hearing, as the author was well known in the Portland area and it

was doubtful whether he would receive a fair trial there. More

particularly, the author was well known to the business

associates of the Magistrate himself, and the author was known to

have bad business relations with those associates. During the

hearing of the application, the Magistrate allegedly said,

apparently only as an aside, that if he were to try the author he

would ensure that a capital sentence be pronounced.

2.4 Mr. Collins' preliminary hearing took place in Spanish Town,

parish of St. Catherine, on 15 October 1981; he was ordered to

stand trial for murder. Detective G., then stationed in a

different parish (Kingston), nevertheless remained in charge of

the police investigations.

2.5 The author's trial began in the St. Catherine Circuit Court,

Spanish Town, on 7 January 1982; he was represented by F.P.,

Q.C., and junior counsel, A.W. In spite of the prosecution's

contention that the author shot Mr. Johnson without provocation,

no plausible motive for the killing could be advanced. The

inference to be drawn from the prosecution's case was that Mr.

Collins had sought to buy a car from a third party via the

victim, and that he shot Mr. Johnson to avoid paying the balance

of the amount owed for the car. Throughout the proceedings, the

author maintained that C.E. himself had committed the crime, and

that he used the author's service weapon after removing it from

the author's apartment. Mr. Collins further asserts that he

never thought of not honouring his debt towards the deceased and

maintains that the balance was paid pursuant to an agreement

which he had arranged for his bank manager to prepare. The bank

manager, D.A., confirmed this version during the first trial.

2.6 During the trial in January 1982, several witnesses,

including members of the author's family, testified on the

author's behalf, confirming that he was at home when the victim

was believed to have been shot. Five of the twelve days of the

trial were devoted to testimony of defence witnesses. At the

conclusion of the trial, the jury was unable to return a verdict.

The author was ordered to be retried and remanded in custody.

2.7 The re-trial began in the Home Circuit Court, Kingston, on

24 October 1983. Mr. Collins was represented by H.C., Q.C. The

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author submits that Detective G. continued to manipulate the

judicial process as well as the jurors. Justice G., who had

heard previous applications on behalf of the author in the

Portland Magistrates Court, was assigned to hear the re-trial;

the author immediately complained to counsel that the judge was

biased against him, in the light of the statement referred to in

paragraph 2.3 above. H.C. told him that nothing could be done

about this.

2.8 The author notes that on 26 October 1983, two witnesses who

were present in court and ready to testify on his behalf, Ms.

B.H. and Ms. Bl.H., saw three members of the jury board a police

car driven by Detective G. Bl.H. followed the car to a quiet

lane, where she found G. and his assistant talking to the jury

members, indicating that he depended on them and asking them not

to let him down. A similar scene was witnessed by Bl.H. on the

following day, upon which she informed counsel, in the author's

presence, of the attempted jury tampering witnessed by her. H.C.

promised to notify the judge but failed to do so. He was

reminded of the matter on 28 October 1983, the final day of the

trial, when he allegedly told Mr. Collins that it was too late to

act.

2.9 Finally, the author indicates that one other witness who

would have been able to provide credible testimony to the effect

that C.E. was the murderer and had in fact used the author's

service weapon for the killing, was prepared to give evidence on

his behalf during the second trial. This witness himself states

that he was available to give evidence during the first trial,

but was prevented from doing so by Detective G. and C.E., who

threatened to kill him and his family if he were to testify in

court. As a result, this witness moved to a remote part of

Jamaica. When he returned to Spanish Town, he was assaulted by a

group of individuals which included C.E. In the circumstances,

the witness did not attend the re-trial.

2.10 On 28 October 1983, the author was found guilty as charged

and sentenced to death. He states that his re-trial only lasted

five days because none of the witnesses who were called to give

evidence on his behalf during the first trial were called to do

so at the re-trial. He blames this on the actions of his

counsel, H.C., and of Detective G. In this context, he notes

that his counsel mentioned to him that he did not wish the trial

to proceed beyond Friday 28 October, as he had other professional

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obligations to attend to in another part of the country at the

beginning of the following week. The author further notes that

the jury was sent out to consider its verdict late on a Friday

afternoon, thereby putting undue pressure on it to return an

early decision.

2.11 The author appealed to the Court of Appeal of Jamaica, which

dismissed the appeal on 11 February 1986. He notes that he has

encountered many problems in obtaining a copy of the written

judgment of the Court of Appeal. As to the possibility of a

petition for special leave to appeal to the Judicial Committee of

the Privy Council, he notes that as leading counsel in London has

opined that there is no merit in such a petition, this remedy

provides no prospective avenue of redress.

2.12 As to the conditions of his detention, the author indicates

that he has suffered ill-treatment on death row on several

occasions. On 28 May 1990, the author was among a number of

prisoners searched by approximately 60 prison warders, who not

only injured the author but also forced him to undress in the

presence of other inmates, warders, soldiers and policemen,

contrary to Section 192, paragraph 3, of the Jamaican Prisons Act

1947. When the author sought to invoke his rights under this

provision, he was subjected to severe beatings by three warders,

one of whom hit him several times with a heavy riot club. His

counsel complained of the treatment to the authorities and the

Parliamentary Ombudsman; no follow-up on the complaint has been

notified to the author or to his counsel, although the author has

served notice of his desire to see the behaviour of the warders

sanctioned. On several subsequent occasions, in particular on 10

September 1990 when he complained to a warder who had been

interfering with his mail and sometimes withholding it

altogether, the author was physically assaulted; as a result, he

was injured on his hand, which required medical attention and

several stitches to mend his injury.

The complaint :

3.1 The author contends that the conduct of his re-trial in

October 1983 violated article 14, paragraphs 1, 2, and 3(e), of

the Covenant. In particular, he submits that the judge was

biased against him, as manifested by his previous statement made

in the Portland Magistrates Court. In the author's opinion, the

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appointment of the judge violated his rights to equality before

the court, to a fair hearing by an impartial tribunal, and to be

presumed innocent until found guilty according to law. In this

context, he explains that it is a general rule of criminal

procedure in Jamaica that the judge presiding over a trial should

not have any prior involvement in the case, and no prior

involvement with the defendant, unless such prior involvement is

notified to all the parties and no objections are raised. It is

further explained that the rationale for the general rule is that

the presentation of the evidence at preliminary hearings in

criminal cases is not subject to the same strict rules of

evidence governing a trial, and that it is, accordingly,

considered wrong for a trial judge to have heard evidence in

those circumstances at an earlier stage of the proceedings. No

such procedure was followed in the author's case.

3.2 As to the claim of jury tampering by Detective G., the

author explains that although such allegations are rare in

capital cases, they are not unheard of in Jamaica. In his case,

Detective G. took charge of a police investigation in a matter in

which he was personally involved through his family links with

C.E., whom the author suspected of having killed Mr. Johnson.

The author claims that G.'s tampering with jury members,

including the foreman of the jury, during the re-trial, as well

as his intimidation of a key defence witness who might otherwise

have testified on his behalf, constitute a serious violation of

his rights under article 14, paragraphs 1 and 2.

3.3 The author affirms that the conduct of his defence by H.C.

during the second trial, in its effect, deprived him of a fair

trial and violated his right, under article 14, paragraph 3(e),

to have witnesses testify on his behalf under the same conditions

as the witnesses against him. Thus, counsel did not call several

witnesses who were present in court throughout the re-trial and

ready to testify on his behalf, including B.H. and Bl.H.; nor did

he arrange for the author's bank manager to testify at the

re-trial, although he had given evidence at the first trial.

3.4 It is further submitted that the non-availability of the

author's alibi evidence during the re-trial was particularly

crucial, in the light of the weakness of the prosecution's case

which was based on the evidence of a witness who had initially

been detained in connection with the murder and who, at the time

of his testimony, had just served a prison term of eighteen

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months for the theft of three cars. These circumstances are said

to corroborate the author's claim of a violation of article 14,

paragraphs 1 and 3(e): the absence of defence evidence violated a

fundamental prerequisite of a fair trial, and H.C.'s failure to

ensure that defence evidence be put before the court is said to

constitute a gross violation of the author's rights.

3.5 The author submits that the beatings he was subjected to on

death row in May and September 1990, as well as the interference

with his correspondence, constitute violations of his rights under

articles 7 and 10, paragraph 1, of the Covenant. He adds that

Detective G. is now in charge of crime prevention in the parish of

St. Catherine, where the prison is located, and expresses fear

that G. may use his position for further attacks on his integrity.

3.6 Finally, the author's detention in the death row section of

St. Catherine District Prison since 28 October 1983 is said to

constitute a separate violation of article 7, as the severe mental

stress suffered by the author due to the continued uncertainty

about his situation is not a function of legal but primarily

political considerations.

3.7 As to the requirement of exhaustion of domestic remedies,

counsel recalls the Committee's established jurisprudence that

remedies must not only be available but also effective, and that

the State party has an obligation to provide some evidence that

there would be a reasonable prospect that domestic remedies would

be effective. He submits that neither a petition for special

leave to appeal to the Judicial Committee of the Privy Council nor

a constitutional motion in the Supreme (Constitutional) Court of

Jamaica would provide effective remedies.

3.8 In this context, it is submitted that the case cannot be

brought within the ambit of Section 110, paragraphs 1 and 2, of

the Jamaican Constitution governing the modalities under which the

Court of Appeal may grant leave to appeal to the Judicial

Committee of the Privy Council. Firstly, at no stage in the

judicial proceedings did a question as to the interpretation of

the Jamaican Constitution arise, as required by Section 110,

paragraph 1(c). Secondly, the general criteria for granting leave

to the Privy Council in Section 110, paragraph 2(a) (a question of

great general or public importance or otherwise such that it ought

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to be submitted to the Privy Council) were not met in the case.

3.9 As to the power of the Judicial Committee, under Section 110,

paragraph 3, of the Constitution, to grant special leave to appeal

from a decision of the Court of Appeal, counsel affirms that any

application for special leave requires the submission of a legal

opinion from Leading Counsel, to the effect that there is merit in

seeking leave. In the author's case, Leading Counsel, the

President of the Bar Council (United Kingdom), has advised that

the substantive issues involved do not fall within the narrow

jurisdiction of the Judicial Committee. Leading Counsel considers

that although there were weaknesses in the evidence against the

author during his re-trial, as well as in the handling of the

defence case, the likelihood of the Judicial Committee to grant

special leave to appeal in respect of those matters would be

remote.

3.10 To petition the Judicial Committee in the current

circumstances would involve discarding highly qualified legal

advice that such an avenue would be inappropriate; counsel

submits that since the author has diligently considered the

possibility of petitioning the Judicial Committee, he should not

now be penalized for accepting the advice of Leading Counsel.

Finally, it is submitted that recourse to the Judicial Committee

in instances in which an application is likely to fail would

involve the submission of a large number of unmeritorious

petitions to the Judicial Committee, with damaging consequences

for the judicial procedure before that body. Such a consequence,

it is submitted, cannot have been the purpose of the rule laid

down in article 5 of the Optional Protocol.

3.11 Counsel further asserts that a constitutional motion in the

Supreme (Constitutional) Court does not provide the author with

an effective domestic remedy. In this context, he advances three

arguments: firstly, Section 25 of the Jamaican Constitution,

which provides for the "enforcement" of the individual rights

guaranteed under Chapter Three of the Constitution, including the

right to a fair trial, would not provide an appropriate remedy in

the circumstances of the case, as "enforcement" within the

meaning of Section 25 would involve ordering a second re-trial

which, more than ten years after the murder of Mr. Johnson, is an

impractical proposition. Secondly, it is submitted that the

proviso to Section 25, paragraph 2, namely that the Supreme Court

shall not exercise its powers if it is satisfied that adequate

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means of redress for the contravention alleged are, or have been,

available to the applicant, applies to the author's case.

Finally, a constitutional remedy is not "available" to the

author, because the State party does not grant legal aid for the

purpose of filing constitutional motions in the Supreme Court,

and lawyers in Jamaica are generally unwilling to argue such

motions on a pro bono basis.

The State party's observations

:

4. The State party, by submission of 20 July 1988, contends that

the communication is inadmissible on the grounds of

non-exhaustion of domestic remedies, since the author retains the

right, under Section 110 of the Jamaican Constitution, to

petition the Judicial Committee of the Privy Council for special

leave to appeal. It adds that it issued the written judgment of

the Court of Appeal of Jamaica on 17 March 1986 and that it was

available to the author and to his counsel; legal aid would be

available to the author to petition the Judicial Committee

pursuant to Section 3, paragraph 1, of the Poor Prisoners'

Defence Act.

The Committee's admissibility considerations and decision

:

5.1 During its 34th session, the Committee considered the

admissibility of the communication. With regard to the

requirement of exhaustion of domestic remedies, it found that, in

the circumstances, a petition for special leave to appeal to the

Judicial Committee of the Privy Council did not constitute an

available and effective remedy within the meaning of the Optional

Protocol. Furthermore, it emphasized that unreasonably prolonged

delays had been encountered in obtaining the written judgment of

the Court of Appeal of Jamaica, the submission of which to the

Judicial Committee was a prerequisite for an application for

leave to appeal to be entertained. In Mr. Collins' case, it was

undisputed that he had not received the written judgment of the

Court of Appeal approximately two years after the dismissal of

his appeal.

5.2 On 2 November 1988, accordingly, the Human Rights Committee

declared the communication admissible.

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The State party's objections to the admissibility decision and

the Committee's requests for further clarifications

:

6.1 By two submissions of 25 May 1989 and 22 February 1990, the

State party rejects the Committee's findings of admissibility and

challenges the reasoning described in paragraph 5.1 above. In

particular, it submits that the fact that the power of the

Judicial Committee of the Privy Council to grant special leave to

appeal pursuant to Section 110, paragraph 3, of the Constitution,

is discretionary, does not relieve Mr. Collins from his

obligation to pursue this remedy. It contends that

"[a] remedy is no less a remedy because there is, inherent

in structure, a preliminary stage which must be undergone

before the remedy itself becomes properly applicable. In

the instant case, an application to the Privy Council for

special leave [to appeal] from decisions of the Court of

Appeal is considered in a judicial hearing and a

determination thereon is made on grounds which are wholly

judicial and reasonable. The Privy Council refuses to grant

leave to appeal if it considers that there is no merit in

the appeal. Therefore, where special leave was refused, the

applicant cannot say [that] he has no remedy...."

6.2 The State party criticizes the Committee's interpretation of

article 5, paragraph 2(b), of the Optional Protocol, according to

which a domestic remedy must be both available and effective as

"a gloss on the relevant provisions of the Optional Protocol": in

the instant case, the effectiveness of the remedy must in any

event be demonstrated by the power of the Judicial Committee to

entertain an appeal.

6.3 The State party affirms that even if the Judicial Committee

were to dismiss the author's petition for special leave to

appeal, the communication would remain inadmissible on the ground

of non-exhaustion of domestic remedies, since Mr. Collins would

retain the right to apply for constitutional redress in the

Supreme (Constitutional) Court, alleging a violation of his right

to a fair trial, protected by Section 20 of the Constitution.

6.4

Considering that further information about the

constitutional remedy which the State party claims remains open

to Mr. Collins would assist it in the consideration of the

communication, the Committee adopted an interlocutory decision

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On 6 April 1989, the Human Rights Committee had adopted

1

its Views under article 5, paragraph 4, of the Optional Protocol

in respect of these cases: see CCPR/C/35/D/210/1986 and

225/1987.

during its 37th session, on 2 November 1989. In it, the State

party was requested to clarify whether the Supreme

(Constitutional) Court had had the opportunity to determine,

pursuant to section 25, paragraph 2, of the Jamaican

Constitution, whether an appeal to the Court of Appeal and the

Judicial Committee of the Privy Council constituted "adequate

means of redress" for individuals who claim that their right to a

fair trial, as guaranteed by section 20, paragraph 1, of the

Constitution, had been violated. Should the answer be in the

affirmative, the State party was asked to also clarify whether

the Supreme (Constitutional) Court had declined to exercise its

powers under section 25, paragraph 2, in respect of such

applications, on the ground that adequate means of redress were

already provided for in law. By submission of 22 February 1990,

the State party replied that the Supreme (Constitutional) Court

had not had the opportunity to consider the issue. It reiterated

its request of 25 May 1989 that the decision on admissibility be

revised, citing rule 93, paragraph 4, of the Committee's rules of

procedure.

6.5

In June 1991, author's counsel informed the Committee that

the Supreme (Constitutional) Court had rendered its judgment in

the cases of Earl Pratt and Ivan Morgan, on whose behalf

constitutional motions had been filed earlier in 1991.

In the

1

light of this judgment and in order better to appreciate whether

recourse to the Supreme (Constitutional) Court was a remedy which

the author had to exhaust for purposes of the Optional Protocol,

the Committee adopted a second interlocutory decision during its

42nd session, on 24 July 1991. In this decision, the State party

was requested to provide detailed information on the availability

of legal aid or free legal representation for the purpose of

constitutional motions, as well as examples of such cases in

which legal aid might have been granted or free legal

representation might have been procured by applicants. The State

party did not forward this information within the deadline set by

the Committee, that is, 26 September 1991. By submission of 10

October 1991 concerning another case, the State party replied

that no provision for legal aid in respect of constitutional

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See Communication No. 369/1989 (

G.S. v. Jamaica),

2

decision of 8 November 1989, paragraph 3.2.

motions exists under Jamaican law, and that the Covenant does not

oblige the State party to provide legal aid for this purpose.

6.6

In both of the above interlocutory decisions, as well as by

note verbale dated 18 April 1990 addressed to it by the

Committee's Secretariat, the State party was requested to also

provide information and observations in respect of the substance

of the author's allegations. In its interlocutory decision of 24

July 1991, the Committee added that should no comments be

forthcoming from the State party on the merits of the author's

allegations, it might decide to give due consideration to these

allegations.

6.7

In spite of the Committee's repeated requests and reminders,

the State party did not provide detailed information and

observations in respect of the substance of the author's

allegations. In this respect, it merely observed, by submission

of 4 September 1990, that the facts as submitted by Mr. Collins

seek to raise issues of facts and evidence in the case which the

Committee has no competence to evaluate, adducing in support of

its contention a decision adopted by the Human Rights Committee

in November 1989.

2

Post-admissibility proceedings and examination of merits

:

7.1 In the light of the above, the Committee decides to proceed

with its consideration of the communication. The Committee has

taken note of the State party's position, formulated after the

decision on admissibility, and takes the opportunity to expand

upon its admissibility findings.

7.2 The Committee has considered the State party's argument that

the fact that the power of the Judicial Committee of the Privy

Council to grant leave to appeal, pursuant to Section 110,

paragraph 3, of the Jamaican Constitution, is limited, does not

absolve an applicant from availing himself of this remedy.

7.3 The Committee appreciates that the discretionary element in

the Judicial Committee's power to grant special leave to appeal

pursuant to Section 110, paragraph 3, does not in itself relieve

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the author of a communication under the Optional Protocol of his

obligation to pursue this remedy. However, for the reasons set

out below, the Committee believes that the present case does not

fall within the competence of the Judicial Committee, as also

contended by leading counsel in the case.

7.4 In determining whether to grant leave to appeal to the

Judicial Committee, the Court of Appeal of Jamaica must generally

ascertain, under Section 110, paragraphs 1(c) and 2(a) of the

Jamaican Constitution, whether the proceedings involve a question

as to the interpretation of the Jamaican Constitution or a

question of great general or public importance or otherwise such

that it should be submitted to the Privy Council. Pursuant to

the powers conferred upon it by Section 110, paragraph 3, the

Judicial Committee applies similar considerations. In granting

special leave to appeal, the Judicial Committee is concerned with

matters of public interest arising out of the interpretation of

legal issues in a case, such as the rules governing

identification procedures. There is no precedent to support the

conclusion that the Judicial Committee would consider issues of

alleged irregularities in the administration of justice, or that

it would consider itself competent to enquire into the conduct of

a criminal case. Such matters, however, are central to the

author's complaint, which does not otherwise raise legal issues

of general or public interest. In this context, the Committee

notes that the evaluation of evidence and the summing up of

relevant legal issues by the judge was neither arbitrary nor

amounted to a denial of justice, and that the judgment of the

Court of Appeal clearly addressed the grounds of appeal.

7.5 In the particular circumstances of the case, therefore, the

Committee finds that a petition for leave to appeal to the

Judicial Committee of the Privy Council would have no prospect of

success; accordingly, it does not constitute an effective remedy

within the meaning of the Optional Protocol.

7.6 Similar considerations apply to the author's possibility of

obtaining the redress sought by applying for constitutional

redress in the Supreme (Constitutional) Court. A remedy is not

"available" within the meaning of the Optional Protocol where, as

in the instant case, no legal aid is made available in respect of

constitutional motions, and no lawyer is willing to represent the

author for this purpose on a

pro bono basis. The Committee

further reiterates that in capital punishment cases, legal aid

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See Views in Communication No. 250/1987 (

Carlton Reid

3

v. Jamaica), decision of 20 July 1990, paragraph 13.

should not only be made available; it should also enable counsel

to prepare his client's defence in circumstances that can ensure

justice.

3

7.7 For the reasons set out above, the Committee finds that a

petition for special leave to appeal to the Judicial Committee of

the Privy Council and a constitutional motion in the Supreme

(Constitutional) Court are not remedies that the author would

have to exhaust for purposes of the Optional Protocol. It

therefore concludes that there is no reason to reverse its

decision on admissibility of 2 November 1988.

8.1 With respect to the alleged violations of the Covenant, four

issues are before the Committee: (a) whether the conduct of the

author's re-trial by a judge with a previous involvement in the

case violated the author's rights under article 14, paragraphs 1

and 2, of the Covenant; (b) whether the alleged tampering with

members of the jury by the investigating officer, and the alleged

intimidation of witnesses by the same officer, violated the

aforementioned provisions; (c) whether the failure of author's

counsel in the re-trial to call witnesses on his behalf violated

article 14, paragraph 3(e); and (d) whether the author's alleged

ill-treatment on death row amounts to violations of articles 7

and 10.

8.2

Concerning the substance of Mr. Collins' allegations, the

Committee regrets that several requests for clarifications

notwithstanding (requests which were reiterated in two

interlocutory decisions adopted after the decision on

admissibility of 2 November 1988), the State party has confined

itself to the observation that the facts relied upon by the

author seek to raise issues of facts and evidence that the

Committee is not competent to evaluate. The Committee cannot but

interpret this as the State party's refusal to co-operate under

article 4, paragraph 2, of the Optional Protocol. Article 4,

paragraph 2, of the Optional Protocol enjoins a State party to

investigate in good faith all the allegations of violations of

the Covenant made against it and its judicial authorities, and to

make available to the Committee all the information at its

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disposal. The summary dismissal of the author's allegations, as

in the present case, does not meet the requirements of article 4,

paragraph 2. In the circumstances, due weight must be given to

the author's allegations, to the extent that they have been

credibly substantiated.

8.3

The Committee does not accept the State party's contention

that the communication merely seeks to raise issues of facts and

evidence which the Committee does not have the competence to

evaluate. It is the Committee's established jurisprudence that

it is in principle for the appellate courts of States parties to

the Covenant to evaluate facts and evidence in a particular case

or to review specific instructions to the jury by the judge,

unless it can be ascertained that the instructions to the jury

were clearly arbitrary or amounted to a denial of justice, or

that the judge clearly violated his obligation of impartiality

(see Views on Communication No. 253/1987 -

Paul Kelly v. Jamaica,

decision of 8 April 1991, paragraph 5.13). In the present case,

the Committee has been requested to examine matters in this

latter category. After careful consideration of the material

before it, the Committee cannot conclude that the remark

attributed to Justice G. in the committal proceedings before the

Portland Magistrates Court resulted in a denial of justice for

Mr. Collins during his re-trial in the Home Circuit Court of

Kingston. The author has not even alleged in which respect the

instructions given by the judge to the jury were either arbitrary

or reflected partiality. The Committee further notes that the

verdict of the jury necessarily entailed a mandatory death

sentence, by which the judge was bound. Secondly, the Committee

notes that, although the author states that he apprised his

counsel of the judge's alleged bias towards him, counsel opined

that it was preferable to let the trial proceed. Nor was the

matter raised on appeal, although the author's case was at all

times in the hands of a professional adviser. Even if the remark

was indeed made, in the absence of clear evidence of professional

negligence on the part of counsel, it is not for the Committee to

question the latter's professional judgment. In the

circumstances, the Committee finds no violation of article 14,

paragraphs 1 and 2.

8.4

Similar considerations apply to the alleged attempts at jury

tampering by the investigating officer in the case. In a trial

by jury, the necessity to evaluate facts and evidence

independently and impartially also applies to the jury; it is

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important that all the jurors be placed in a position in which

they may assess the facts and the evidence in an objective

manner, so as to be able to return a just verdict. On the other

hand, the Committee observes that where alleged improprieties in

the behaviour of jurors or attempts at jury tampering come to the

knowledge of either of the parties, these alleged improprieties

should have been challenged before the court. In the present

case, the author claims that his counsel was informed, on 27

October 1983, that Detective G., the investigating officer, had

sought to influence members of the jury. Counsel neither

conveyed this information to the judge nor sought to challenge

the jurors allegedly influenced by Detective G.; in the

Committee's opinion, if it had been thought that the complaint

was tenable, it would have been raised before the courts.

Accordingly, the Committee cannot conclude that Mr. Collins'

rights under article 14, paragraphs 1 and 2, were violated by the

State party in this respect.

8.5 As to the author's claim of a violation of article 14,

paragraph 3(e), the Committee notes that at least two witnesses

who would have been willing to testify on the author's behalf

were present in the courtroom during the re-trial.

Notwithstanding the author's repeated requests, they were not

called. As author's counsel had been privately retained, his

decision not to call these witnesses cannot, however, be

attributed to the State party. In the view of the Committee,

counsel's failure to call defence witnesses did not violate the

author's right under article 14, paragraph 3(e).

8.6 As to the author's allegations of ill-treatment on death

row, the Committee observes that the State party has not

addressed this claim, in spite of the Committee's request that it

do so. It further notes that the author brought his grievances

to the attention of the prison authorities, including the

Superintendent of St. Catherine District Prison, and to the

Parliamentary Ombudsman, and swore affidavits in this context.

Apart from the re-location of some prison warders involved in the

ill-treatment of the author on 28 May 1990, however, the

Committee has not been notified whether the investigations into

the author's allegation have been concluded some eighteen months

after the event, or whether, indeed, they are proceeding. In the

circumstances, the author should be deemed to have complied with

the requirement of exhaustion of domestic remedies, pursuant to

article 5, paragraph 2(b), of the Optional Protocol. With

respect to the substance of the allegation and in the absence of

any information to the contrary from the State party, the

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Committee finds the allegations substantiated and considers that

the treatment of Mr. Collins on 28 May 1990 and on 10 September

1990 reveals a violation of article 10, paragraph 1.

8.7

As to the author's claim under article 7, the Committee

observes that it equally has not been refuted by the State party.

The claim having been sufficiently substantiated, the Committee

concludes that the beatings Mr. Collins was subjected to by three

prison warders on 28 May 1990, as well as the injuries he

sustained as a result of another assault on 10 September 1990,

constitute cruel, inhuman and degrading treatment within the

meaning of article 7 of the Covenant.

9.

The Human Rights Committee, acting under article 5,

paragraph 4, of the Optional Protocol to the International

Covenant on Civil and Political Rights, is of the view that the

facts before it disclose a violation of articles 7 and 10,

paragraph 1, of the Covenant.

10.

Two consequences follow from the findings of a violation by

the Committee. The first is that the violation of article 7 of

the Covenant should cease, and the author should be treated in

accordance with the requirements of article 10, paragraph 1. In

this regard the State party should promptly notify the Committee

as to the steps it is taking to terminate the maltreatment and to

secure the integrity of the author's person. The State party

should also take steps to ensure that similar violations do not

occur in the future. The second consequence is that the author

should receive an appropriate remedy for the violations he has

suffered.

11.

The Committee would wish to receive information, within

three months of the transmittal to it of this decision, on any

relevant measures taken by the State party in respect of the

Committee's Views.

[Done in English, French, Russian and Spanish, the English text

being the original version.]

[ORIGINAL: FRENCH]

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Individual opinion of Ms. Christine Chanet and Messrs. Kurt

Herndl,

Francisco José Aguilar Urbina and Bertil Wennergren pursuant to

rule 94, paragraph 3, of the Committee's rules of procedure,

concerning the Committee's Views on

Communication No. 240/1987 - Willard Collins v. Jamaica.

"De notre point de vue, quels que soient le contenu et

l'impact des remarques attribuées au Juge G. au cours de la

procédure, le fait qu'il avait participé à l'instance devant le

Magistrates Court de Portland en 1981 lui donnait une

connaissance de l'affaire préalable au jugement. Et cette

connaissance portait nécessairement sur les charges pesant contre

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l'auteur ainsi que sur l'appréciation de celles-ci et de sa

personne, puisque l'audience devant le Magistrates Court visait à

la mise en accusation et au renvoi. C'est pourquoi, selon notre

opinion, sa désignation pour présider au deuxième procès de

l'auteur devant le Home Circuit Court de Kingston en octobre 1983

était incompatible avec l'exigence d'impartialité au sens de

l'article 14, paragraphe 1, du Pacte.

Il appartient à l'Etat partie d'édicter et de faire

appliquer les incompatibilités entre les différentes fonctions

judiciaires, afin qu'un magistrat ayant participé à une phase de

la procédure concernant l'évaluation pertinente bien que

préliminaire des charges pesant sur une personne, ne puisse à

aucun titre participer au jugement de cette personne sur le fond.

Faute de quoi, il y a violation de l'article 14, paragraphe

1. Tel est notre avis au cas d'espèce."

Ch. Chanet

K. Herndl

Fr. Aguilar Urbina

B. Wennergren

-*-