Decision on merits; Substantive issues: accused persons / convicted persons cruel, inhuman or degrading treatment or punishment preparation of defence fair trial legal assistance; Articles: 7 14 (1) 14 (3) (d); Procedural issues: exhaustion of domestic remedies ratione materiae; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
Communication No. 292/1988, Delroy Quelch v. Jamaica
(views adopted on 23 October 1992, forty-sixth
session)
Submitted by:
Delroy Quelch (represented by counsel)
Alleged victim:
The author
State party:
Jamaica
Date of communication:
24 February 1988
Date of decision on admissibility: 15 March 1990
The Human Rights Committee, established under article 28 of the
International Covenant on Civil and Political Rights,
Meeting on 23 October 1992,
Having concluded its consideration of communication No. 292/1988,
submitted to the Human Rights Committee on behalf of Delroy Quelch 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, his counsel and by the State party,
Adopts its views under article 5, paragraph 4, of the Optional Protocol.
1.
The author of the communication is Delroy Quelch, a Jamaican citizen
currently awaiting execution at St. Catherine District Prison, Jamaica. He
claims to be a victim of a violation by Jamaica of articles 6, paragraphs 1,
7, and 14, paragraphs 1 and 3 (d), in conjunction with article 2, paragraph
3, of the International Covenant on Civil and Political Rights. He is
represented by counsel.
Facts as submitted
2.1 The author states that he was arrested on 10 July 1984 on suspicion of
complicity in the murder of a police constable, V. W., on 3 July 1984. He
and his co-defendants, Errol Reece and Robert Taylor, were tried at the
Portland Circuit Court and sentenced to death on 21 June 1985. Their appeal
was dismissed by the Court of Appeal of Jamaica on 15 December 1986. All
three defendants subsequently petitioned the Judicial Committee of the Privy
Council for special leave to appeal. By decision of 27 July 1989, the Privy
Council quashed the decision of the Jamaican Court of Appeal with respect to
the author's co-defendants, whereas it dismissed the author's appeal.
2.2 The author states that, on 3 July 1984, he was approached by a man, whom
he knew as "Chappel", and five other individuals. He was asked by Chappel to
escort them since he was more familiar with the area they were heading to.
On the way, they stopped to buy drinks, and the author and Chappel were
ordered to wait while the others headed towards Moore Town Post Office a few
blocks away. Upon their return, a half hour later, the men were armed with
rifles and ordered the author to lead them to Millbank District, where they
assaulted the driver of a van parked at the roadside and drove off in the van
to a nearby hill; there
the men became engaged in a shoot-out with three policemen in plain clothes,
one of whom was fatally shot. The author states that the men then threatened
to kill him if he informed the police about the incident. He further
maintains that it was only later the same day that he learned that the Moore
Town Post Office had been robbed.
2.3 After his arrest, the author was placed on an identification parade
during which, he claims, a serious error was made in that the parade sheet
indicated that he had been standing in the No. 1 position, and not No. 9, as
the witness who identified him testified. This issue was raised during the
trial. The author adds that the main prosecution witness, a policeman who
survived the shooting, testified to having seen him twice at a gate, and then
running close to the scene of the crime. He contends that the description of
him given by this witness did not at all correspond to his appearance, in
particular his beard and the style of his hair at the time in question.
2.4 He further submits that he was assigned an inexperienced lawyer, who, in
addition, was constantly obstructed in his defence by the judge. He concedes
that witnesses called to testify against him were cross-examined but claims
that those whom he sought to have testify on his behalf were not called by
his legal aid lawyer. With respect to his appeal, the author claims that his
court-appointed lawyer did not appear at all for the hearing.
2.5 By submission of 30 November 1989, counsel argues that the central issue
in this case relates to the treatment of identification evidence. He submits
that the author's identification by the main prosecution witness depended
entirely on "fleeting glance" and points out that the witness admitted this
himself during cross-examination. Counsel further contends that the author
was denied the right to adequate and effective legal assistance, both during
trial and appeal; in particular, his representative allegedly failed to call
witnesses to testify that the author's identification parade had not been
properly conducted and to attest to the author's appearance at the time of
the offence, in order to clarify the alleged discrepancies in the prosecution
witness' evidence.
Complaint
3.
The author claims that he has been denied a fair trial, in violation of
article 14, paragraph 1, of the Covenant; that he has been denied the right
to adequate and effective legal representation, in violation of article 14,
paragraph 3 (d), of the Covenant; that his death sentence is disproportionate
and constitutes cruel and inhuman punishment, in violation of article 7 of
the Covenant; that the execution of his death sentence would constitute an
arbitrary deprivation of his life, in violation of article 6 of the Covenant.
He further claims that he has been denied the right to an effective domestic
remedy, in violation of article 2, paragraph 3, of the Covenant.
State party's observations and the author's comments thereon
4.
By submission, dated 28 September 1989, the State party contends that,
in spite of the dismissal of the author's petition by the Judicial Committee
of the Privy Council, the communication is inadmissible for failure to
exhaust domestic remedies, since the author has not pursued the remedies
available to him under the Jamaican Constitution. In this context, the State
party submits that the provisions of the Covenant invoked by the author
(arts. 6, 7, and 14) are coterminous with the rights protected by sections
14, 17 and 20 of the Jamaican Constitution, which guarantee to everyone the
right to life, protection against torture, inhuman or degrading punishment or
treatment, and due process of law, respectively. Under the Constitution, if
anyone alleges that any of these fundamental rights has been, is being or is
likely to be contravened in relation to him, he may, without prejudice to any
other action with respect to the same matter which is lawfully available,
apply to the Supreme Court for redress.
5.
In his comments on the State party's submission, counsel challenges the
State party's contention that the author may still pursue constitutional
remedies and submits that these remedies are not available to the author
owing to lack of financial means and unavailability of legal aid for the
purpose, despite the guarantees of section 25 (1) of the Jamaican
Constitution.
Committee's considerations and decision on admissibility
6.1 During its thirty-eighth session, in March 1990, the Committee
considered the admissibility of the communication. It observed that recourse
to the Constitutional Court under section 25 of the Jamaican Constitution was
not a remedy available to the author within the meaning of article 5,
paragraph 2 (b), of the Optional Protocol.
6.2 In respect of the author's contention that the judge failed to direct
the jury adequately on the issue of identification evidence in the case, the
Committee considered that, while article 14 of the Covenant guarantees the
right to a fair trial, it is in principle for the appellate courts of States
parties to the Covenant, and not for the Committee, to evaluate facts and
evidence in a particular case and to review specific instructions to the
jury. It found therefore that this part of the communication was
inadmissible under article 3 of the Optional Protocol.
6.3 The Committee further considered that the author's claim that he
suffered inhuman and degrading treatment in violation of article 7 of the
Covenant had not been substantiated, for purposes of admissibility.
6.4 The Human Rights Committee, therefore, declared the communication
admissible in so far as it might raise issues under article 14, paragraph
3 (d), of the Covenant, in respect of the claim that no lawyer was present
during the author's appeal.
Review of admissibility
7.
The State party, by submission of 6 February 1991, maintains that the
communication is inadmissible because of the author's failure to file a
constitutional motion.
8.1 The Committee has taken note of the State party's argument that
constitutional remedies are still available to the author. It recalls that
the Supreme Court of Jamaica has, in recent cases, allowed applications for
constitutional redress in respect of breaches of fundamental rights, after
the criminal appeals in these cases had been dismissed.
8.2 However, the Committee also recalls that by submission of 10 October
1991 concerning another case, a/ the State party indicated that legal aid is
not provided for constitutional motions, and that it has no obligation under
the Covenant to make legal aid available in respect of such motions, as they
do not involve the determination of a criminal charge, as required under
article 14, paragraph 3 (d), of the Covenant. In the view of the Committee,
this supports the finding, made in the decision on admissibility, that a
constitutional motion is not an available remedy for an author who has no
means of his own to pursue it. In this context, the Committee observes that
the author does not claim that he is absolved from pursuing constitutional
remedies because of his indigence; rather it is the State party's
unwillingness or inability to provide legal aid for the purpose that renders
the remedy one that need not be pursued for purposes of the Optional
Protocol.
8.3 The Committee further notes that the author was arrested in 1984, tried
and convicted in 1985, and that his appeals were dismissed in December 1986
by the Court of Appeal of Jamaica and in July 1989 by the Judicial Committee
of the Privy Council. The Committee deems that for purposes of article 5,
paragraph 2 (b), of the Optional Protocol, the pursuit of constitutional
remedies would, in the circumstances of the case, entail an unreasonable
prolongation of the application of domestic remedies. Accordingly, there is
no reason to revise the decision on admissibility of 15 March 1990.
Examination of the merits
9.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol.
9.2 The Committee notes with concern that the State party in its submissions
has confined itself to issues of admissibility. Article 4, paragraph 2, of
the Optional Protocol enjoins a State party to investigate in good faith all
the allegations made against it, and to make available to the Committee all
the information at its disposal. The Committee observes that the State
party's failure to meet the requirements of article 4, paragraph 2, of the
Optional Protocol renders the examination of the instant communication unduly
difficult.
9.3 With regard to the author's claim that he was not represented during the
appeal proceedings, the Committee notes that the written judgement of the
Court of Appeal shows that counsel for the author was present during the
appeal hearing, and argued that the evidence against the author, based solely
on identification by one eye-witness and the author's own statement to the
police, was not sufficient. Accordingly, the Committee, in this respect,
finds no violation of article 14, paragraph 3 (d), of the Covenant.
10. 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 do not disclose a violation
of article 14 of the International Covenant on Civil and Political Rights.
[Done in English, French, Russian and Spanish, the English text being the
original version.]
Notes
a/
Communication No. 283/1988 (Aston Little v. Jamaica), views adopted
on 1 November 1991.