Inadmissibility decision; Substantive issues: accused persons / convicted persons cruel, inhuman or degrading treatment or punishment fair trial; Articles: 14 (1); Procedural issues: 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. 404/1990, N. P. v. Jamaica (decision of
5 April 1993, adopted at the forty-seventh session)
Submitted by:
N. P. (name deleted)
Alleged victim:
The author
State party:
Jamaica
Date of communication: 17 April 1990 (initial submission)
The Human Rights Committee, established under article 28 of the
International Covenant on Civil and Political Rights,
Meeting on 5 April 1993,
Adopts the following:
Decision on admissibility
1.
The author of the communication is N. P., a Jamaican citizen currently
awaiting execution at St. Catherine District Prison, Jamaica. He claims to
be the victim of violations by Jamaica of articles 6; 7; 10, paragraph 1; and
14 of the International Covenant on Civil and Political Rights. He is
represented by counsel.
Facts as submitted
2.1 On 13 February 1987, the author and two co-defendants were tried before
the Home Circuit Court in Kingston for the murder, on 11 November 1985, of
one K. W. They were found guilty as charged and sentenced to death. The
author's appeal was dismissed by the Jamaican Court of Appeal on 11 July
1988; his subsequent petition for special leave to appeal to the Judicial
Committee of the Privy Council was dismissed on 5 April 1990.
2.2 The case for the prosecution was that, in the evening of 10 November
1985, K. W. and his family were at their home in the community of Edgewater.
Shortly after 12.30 a.m., Mrs. W. woke up and discovered that her husband had
been tied up; next to him stood a man with a gun. On her side of the bed
stood another man, whom she later identified as the author, who ordered her
to put her hand behind her back and then tied them up. The men asked for
money; K. W. denied that there was any in the house, upon which he was hit
several times with a gun. The robbers then woke up the couple's two
children, brought them into their parents' bedroom and threatened to shoot
them if the whereabouts of the money was not disclosed. Subsequently, one of
the men, later identified as P. L., took an electric iron, plugged it into a
socket and used it to burn K. W. over his back. When K. W. lashed out at him
and knocked him against the wall, P. L. removed his gun from his waistband
and shot K. W. in the abdomen, causing his instantaneous death.
2.3 All three robbers wore handkerchief masks which concealed at least the
lower portions of their faces. The prosecution contended that, on several
occasions, these masks were removed; this was corroborated by the evidence of
the deceased's two children. There were varying accounts as to the source or
to the quality of the lighting in the bedroom. It was contended that the
principal source of light came from an adjoining bathroom, although at some
stage it was argued that the bedside light had also been turned on. In
addition to the identification evidence, the prosecution relied upon
fingerprints of all three men that were found at the locus in quo.
Complaint
3.1 The author denies that he ever visited the home of the deceased and
asserts that he was apprehended one morning in November 1985, while
travelling in a minibus to visit relatives. He was taken to the central
police station where he was allegedly beaten in order to force him to sign a
self-incriminating statement, which he refused. He claims that his treatment
at the police station was in violation of article 7 of the Covenant. The
author further contends that he was held for several days in a cell at said
station before he was placed on an identification parade. He challenges the
conduct of the identification parade on the ground that the police had
previously taken away his identification card, which carried his photograph.
3.2 The author claims that he was denied a fair trial, in violation of
article 14 of the Covenant. He complains that the identification evidence
against him was weak and open to serious criticism. Furthermore, the trial
judge is said to have misdirected the jury on the burden and standard of
proof in that he directed it that guilt could be established if the jurors
were less than "100 per cent sure, because that is not possible". It is
further alleged that the judge misdirected the jury on the question of
"common design" or "joint enterprise" and, in particular, failed to direct
the jurors that they should not convict on the basis of common design unless
they were convinced that the author contemplated or foresaw not only the
likelihood of violence but, also, of violence causing death or grievous
bodily harm.
State party's information and observations
4.
The State party submits that the communication is inadmissible on the
ground of non-exhaustion of domestic remedies. It contends that the author
may still apply to the Supreme (Constitutional) Court of Jamaica to seek
redress for the alleged breaches, pursuant to Sections 14, 15, 17, 20 and 25
of the Jamaican Constitution. A right of appeal from the decision of the
Supreme Court lies to the Court of Appeal and subsequently to the Judicial
Committee of the Privy Council.
Issues and proceedings before the Committee
5.1 Before considering any claim 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.
5.2 As regards the author's claim under articles 6, 7, and 10, the Committee
considers that the author has failed to substantiate his allegations, for
purposes of admissibility. This part of the communication is therefore
inadmissible under article 2 of the Optional Protocol.
5.3 The Committee observes that the author's remaining allegations concern
claims about irregularities in the court proceedings, in that the judge
instructed the jury improperly on the issues of identification and common
design or joint enterprise. It reiterates that, although article 14
guarantees the right to a fair trial, it is not in principle for the
Committee to review specific instructions to the jury by the judge in a trial
by jury, 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
manifestly violated his obligation of impartiality. In this context, the
Committee has examined the judge's instructions to the jury and finds in them
no arbitrariness, denial of justice, or a violation of the judge's obligation
of impartiality, particularly as regards the question of common design or
joint enterprise. Accordingly, this part of the communication is
inadmissible as incompatible with the provisions of the Covenant, pursuant to
article 3 of the Optional Protocol.
6.
The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under articles 2 and 3 of
the Optional Protocol;
(b) That this decision shall be communicated to the State party, to the
author and to his counsel.
[Done in English, French and Spanish, the English text being the original
version.]