CCPR/C/46/D/338/1988

Communication No. 338/1988, Leroy Simmonds v. Jamaica

(views adopted on 23 October 1992, forty-sixth session)

Submitted by: Leroy Simmonds (represented by counsel)

Alleged victim: The author

State party: Jamaica

Date of communication: 22 November 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. 338/1988,

submitted to the Human Rights Committee on behalf of Mr. Leroy Simmonds 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 the State party,

Adopts its views under article 5, paragraph 4, of the Optional

Protocol.*

1.

The author of the communication is Leroy Simmonds, a Jamaican citizen

currently awaiting execution at St. Catherine District Prison, Jamaica. He

claims to be a victim of violations by Jamaica of article 14 of the

International Covenant on Civil and Political Rights. He is represented by

counsel.

Facts as submitted

2.1 The author was charged with the murder, on 15 May 1983 in the

Westmoreland area, of one Maurice Forrester; he claims to be innocent of the

crime. The prosecution contended that at 4 a.m. on 15 May 1983, the author

and another man entered the deceased's house armed with a handgun and a

dagger, respectively. They ordered the deceased and his girlfriend, Roselena

Brown, out of their bedroom and forced them to board the deceased's rented

car, which was driven by a third man. They drove for about half a mile to a

rendezvous with another car. An exchange of drivers took place, and a fourth

man drove the deceased's car; the other car followed. Upon reaching Spur

Tree, the cars turned into a cul-de-sac; there, Mr. Forrester was shot in the

head, and Roselena Brown in the mouth. The bodies were placed into the

deceased's car, which was doused with petrol and set on fire. Roselena Brown

managed to escape in spite of her injuries.

________________________

*

An individual opinion submitted by Committee members

Mr. Julio Prado Vallejo, Mr. Waleed Sadi and Mr. Bertil Wennergren is

appended.

2.2 It was contended that the killing was an act of vengeance, as

Mr. Forrester was said to have given information to the police. On 13

November 1986, three and a half years after the crime was committed, the

author was detained for two

weeks, allegedly in the absence of formal charges. His attorney filed a

habeascorpus action on his behalf, but on 27 November 1986, the author was

formally charged with murder. No identification parade was held. The author

contends that the charges against him were fabricated by the police

superintendent in charge of the preliminary investigation. In this context,

he observes that throughout the two months of the preliminary investigation,

the police was unable to obtain a statement that would have incriminated him,

and that it was only when the examining magistrate notified the police that

she would have to release the author for lack of evidence that such a

statement was produced.

2.3 On 6 November 1987, he was found guilty as charged and sentenced to

death. On 25 May 1988, the Court of Appeal dismissed his appeal, treating

the hearing of the application for leave to appeal as the appeal itself. On

19 December 1988, the Judicial Committee of the Privy Council dismissed the

author's petition for special leave to appeal.

2.4 During the trial, Roselena Brown testified as the prosecution's

principal witness. She made a dock identification of the author on 5

November 1987, and purported to recognize him on the basis of eight

photographs shown to her by the police on the day after the murder, when she

was hospitalized recovering from her injuries. She further admitted during

the trial that she only knew the author under his "alias" name; the author

contends that the same "alias" was used by several individuals. The trial

judge admitted her evidence. No witnesses were sought to testify on the

author's behalf. The author himself made a statement from the dock,

maintaining that he had never been to Westmoreland.

2.5 In respect of the issue of exhaustion of domestic remedies, counsel

contends that a constitutional motion would not constitute an available and

effective remedy to the author in the circumstances of the case, as no legal

aid is made available by the State party for the purpose, and no lawyer has

accepted to represent the author for this purpose on a pro bono basis.

Complaint

3.1 The author claims that he was denied a fair and impartial trial, in that

the trial judge failed properly to exercise his discretion to exclude

questionable identification evidence, because he did not object to the

author's dock identification, and because he misdirected the jury on the

issue of identification.

3.2 The author further claims that his conviction was contrary to article

14, paragraph 3 (b) and (d), of the Covenant and Sections 14, paragraph 1,

and 20, paragraph 6, of the Jamaican Constitution, in that he was not given

adequate facilities for the preparation of his trial defence and of his

appeal. In this context, he claims that the system of legal aid made

available in Jamaica to poor persons, such as himself, violates the Jamaican

Constitution.

3.3 More specifically, the author contends that he was not informed about

either date or outcome of his appeal until two days after it had been

dismissed. On the "notice of appeal", dated 10 November 1987, the author had

indicated that he wished to be present during the hearing of the appeal and

that he did not wish legal aid to be assigned to him. A legal aid lawyer was

assigned to him allegedly without his knowledge; the author contends that

this lawyer did not even contact him, so that he could not discuss the appeal

with him. The same lawyer argued the appeal on the ground of provocation,

without referring to the identification issue, on which the author mainly

relied.

State party's observations on admissibility

4.

The State party argues that the communication is inadmissible under

article 5, paragraph 2 (b), of the Optional Protocol. It observes that the

author's rights under article 14 of the Covenant are coterminous with the

rights granted under Section 20 of the Jamaican Constitution. Under the

Constitution, anyone who argues that a fundamental right has been, is being

or is likely to be infringed in relation to him may apply to the

Constitutional Court for redress. The decision of the Constitutional Court

may be appealed to the Court of Appeal and from there to the Judicial

Committee of the Privy Council. The State party concludes that since the

author failed to pursue his constitutional remedies before the Supreme Court,

his communication remains inadmissible.

Committee's decision on admissibility

5.1 During its thirty-eighth session in March 1990, the Committee considered

the admissibility of the communication. It took note of the State party's

contention that the complaint was inadmissible due to Mr. Simmonds' failure

to avail himself of constitutional remedies under the Jamaican Constitution.

In the circumstances of the case, the Committee considered 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.

5.2 The Committee noted that some of the author's allegations pertained to

the issue of adequacy or otherwise of the judge's instructions to the jury,

in particular on the issue of the treatment of identification evidence. The

Committee reiterated that the review by it of specific instructions to the

jury is beyond the scope of application of article 14 of the Covenant, 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. In the circumstances, the Committee

found that the judge's instructions did not suffer from such defects.

5.3 On 15 March 1990, the Committee declared the communication admissible in

respect of article 14, paragraph 3 (b) and (d), of the Covenant.

State party's objections to the decision on admissibility

6.1 In a submission dated 6 February 1991, the State party contends that the

Committee's admissibility decision reflects a misunderstanding of the

operation of Sections 25(1) and 25(2) of the Jamaican Constitution. The

right to apply for redress under Section 25(1) is "without prejudice to any

other action with respect to the same matter which is lawfully available".

The only limitation in Section 25(2) is not applicable to the case in the

State party's opinion, since the alleged breach of the right to a fair trial

was not an issue in the author's criminal appeals:

"... If the contravention alleged was not the subject of the criminal law

appeals, ex hypothesi, those appeals could hardly constitute an adequate

remedy for that contravention. The decision of the Committee would

render meaningless ... the constitutional rights of Jamaicans and

persons in Jamaica, by its failure to distinguish between the right to

appeal against the verdict and sentence of the court in a criminal case,

and the right to apply for constitutional redress".

6.2 The State party observes that there are judicial precedents which

illustrate that recourse to criminal law appellate remedies does not render

the proviso of Section 25(2) applicable in situations where, following

criminal law appeals, an individual files for constitutional redress.

6.3 In respect of the absence of legal aid for the filing of constitutional

motions, the State party observes that nothing in the Optional Protocol or

customary international law supports the contention that an individual is

relieved of the obligation to exhaust domestic remedies on the ground that

his indigence has prevented him from resorting to an available remedy. In

this context, it is submitted that the Covenant only imposes a duty to

provide legal aid in respect of criminal offences (art. 14, para. 3 (d)).

Further, international conventions dealing with economic, social and cultural

rights do not impose an unqualified obligation on States to implement such

rights: thus, article 2 of the International Covenant on Economic, Social

and Cultural Rights provides for the progressive implementation of economic

rights. In the circumstances, the State party argues that it is incorrect to

infer from the author's indigence and the absence of legal aid for

constitutional motions that the remedy is necessarily non-existent or

unavailable. Accordingly, the State party requests the Committee to review

its decision of admissibility.

Reconsideration of admissibility issues and examination of the merits

7.1 The Committee has taken note of the State party's arguments on

admissibility formulated after the Committee's decision declaring the

communication admissible, especially in respect of the availability of

constitutional remedies which the author may still pursue. 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.

7.2 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. Accordingly, there is no reason to revise the decision on

admissibility of 15 March 1990.

8.1 The Committee notes that, several requests for clarifications

notwithstanding, the State party has essentially confined itself to issues of

admissibility. Article 4, paragraph 2, of the Optional Protocol enjoins a

State party to investigate in good faith and within the imparted deadlines

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 disposal. In the circumstances, due weight must be given

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

8.2 As indicated in the Committee's decision on admissibility, the Committee

must determine whether the fact that the author was not in a position to

properly prepare his appeal and that he was represented before the Court of

Appeal of Jamaica by an attorney not of his choosing amounts to a violation

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

8.3 In this connection, 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 Mr. Simmonds' case, it is

uncontested that legal counsel was assigned to him for the appeal. What is

at issue is whether he should have been notified of this assignment in a

timely manner and given sufficient opportunity to consult with counsel prior

to the hearing of the appeal, and whether he should have been afforded an

opportunity to be present during the hearing of the appeal.

8.4 The author's application for leave to appeal to the Court of Appeal,

dated 10 November 1987, indicates that he wished to be present during the

hearing of the appeal and that he did not wish the Court to assign legal aid

to him. The Registry of the Court of Appeal ignored the author's wish, as

his application for leave to appeal was heard in his absence and in the

presence of a legal aid attorney, B. S., who argued the appeal on a ground

that Mr. Simmonds had not wished to pursue. The Committee further notes with

concern that the author was not informed with sufficient advance notice about

the date of the hearing of his appeal; this delay jeopardized his

opportunities to prepare his appeal and to consult with his court-appointed

lawyer, whose identity he did not know until the day of the hearing itself.

His opportunities to prepare the appeal were further frustrated by the fact

that the application for leave to appeal was treated as the hearing of the

appeal itself, at which he was not authorized to be present. In the

circumstances, the Committee finds a violation of article 14, paragraph 3 (b)

and (d).

8.5 The Committee considers that the imposition of a sentence of death upon

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

been respected constitutes, if no further appeal against the sentence is

available, a violation of article 6 of the Covenant. As the Committee noted

in its General Comment 6(16), 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 an independent

tribunal, the presumption of innocence, the minimum guarantees for the

defence, and the right to review by a higher tribunal". In the present case,

as 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 been violated.

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 as found by the Committee disclose a

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

10. The Committee is of the view that Mr. Leroy Simmonds is entitled to a

remedy entailing his release. It requests the State party to provide

information, within ninety days, on any relevant measures taken in respect of

the Committee's views.

Notes

a/

Communication No. 283/1988 (Aston Little v. Jamaica), views adopted

on 1 November 1991.

b/

Communication No. 272/1988 (Alrick Thomas v. Jamaica), views

adopted on 31 March 1992, para. 11.4.

Appendix

Individual opinion submitted by Committee members

Mr. Julio Prado Vallejo, Mr. Waleed Sadi and

Mr. Bertil Wennergren, pursuant to rule 94,

paragraph 3, of the Committee's rules of procedure

concerning the Committee's views on communication

No. 338/1988 (Leroy Simmonds v. Jamaica)

The author's complaint centres on the proposition that the Court of

Appeal of Jamaica failed to provide him with a fair trial.

The violations of article 14, paragraph 3 (b) and (d), and in

consequence of article 6, of the Covenant are well substantiated. Where we

differ is in respect of the remedy suggested to the State party by the

Committee. The Committee proposes the release of the author; we do not agree

with this remedy, in the light of the nature of and the circumstances under

which the offence had occurred, and which were neither refuted nor confirmed

because of the deficiencies in the judicial proceedings. Accordingly, the

most appropriate way of remedying what occurred would be to see to it that

the author will be afforded another opportunity to obtain a fair trial. This

result can be obtained by assisting the author in pursuing constitutional

remedies.

It should be noted in this context that it is correct that

constitutional motions have been deemed by the Committee not to provide an

available and effective remedy which an author must first exhaust, but that

this has been the case only where the authors have had no means of their own

and have not been entitled to obtain legal aid from the State party.

Therefore, if the author is given such assistance ex gratia in the case, he

will be in a position to seek a review of his grievances under the

constitutional motions procedure, thereby making this remedy available and

effective.

We thus are of the opinion that the author should be afforded the

possibility of pursuing a constitutional motion by assigning to him legal aid

for the purpose, so as to enable him to seek effective redress for the

violations suffered.

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

original version.]