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BEFORE: |
CHAIRMAN: Mr. Rajsoomer Lallah
(Mauritius)
VICE-CHAIRMEN: Mr. Joseph A. L. Cooray (Sri Lanka), Mr. Vojin
Dimitrijevic (Yugoslavia), Mr. Alejandro Serrano Caldera (Nicaragua)
RAPPORTEUR: Mr. Fausto Pocar (Italy)
MEMBERS: Mr. Francisco Jose Aguilar Urbina (Costa Rica), Mr. Nisuke
Ando (Japan), Miss Christine Chanet (France), Mr. Omran El Shafei
(Egypt), Mr. Janos Fodor Hungary, Mrs. Rosalyn Higgins (United
Kingdom), Mr. Andreas V. Mavrommatis (Cyprus), Mr. Joseph A.
Mommersteeg (Netherlands), Mr. Rein A. Myullerson (Union of Soviet
Socialist Republics), Mr. Birame Ndiaye (Senegal), Mr. Julio Prado
Vallejo (Ecuador), Mr. S. Amos Wako (Kenya), Mr. Bertill Wennergren
(Sweden)
The thirty-sixth session was
attended by all the members of the Committee except Mr. Mommersteeg;
Mr. Aguilar Urbina, Miss Chanet and Messrs. Cooray, Mavrommatis and
Wako attended only part of that session. |
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PermaLink: |
http://www.worldcourts.com/hrc/eng/decisions/1989.07.21_AS_v_Jamaica.htm |
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Citation: |
A.S. v. Jam., Comm. 231/1987, U.N.
Doc. A/44/40, at 274 (HRC 1989) |
Alt. Style
of Cause: |
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Publications: |
Report of the Human Rights
Committee, U.N. GAOR, 44th Sess., Supp. No. 40, U.N. Doc. A/44/40,
Annex XI, sect. C, at 274 (Sep.29, 1989) |
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The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,
Meeting on 21 July 1989,
Adopts the following:
DECISION ON ADMISSIBILITY
1. The author of the communication (initial submission dated 7 June 1987;
several subsequent submissions) is A. S., a Jamaican citizen currently
awaiting execution at St. Catherine District Prison, Jamaica. He claims to
be the victim of a violation of his human rights by the Government of
Jamaica.
2.1 The author states that he and Winston Wright were arrested and charged
with the murder, on 28 November 1983, of one Jasper Vernon, but claims to be
innocent of the crime. He was convicted and sentenced to death on 29 January
1985 in the St. James Circuit Court, while his co-defendant was convicted of
manslaughter and sentenced to 10 years of hard labour.
2.2 With respect to the facts of the case, it appears [FNa] that the
deceased and the author were living in the same area and reputed to be good
friends. On the night of 28 November 1983, at or around 9 p.m., one of the
witnesses, Roy Clarke, heard the sound of wrestling and of two gunshots
outside his house, and then a voice calling out for help. After a few
moments, he went outside and found the victim, who had been seriously
wounded by bullets fired at close range. He then recognize that it was the
victim's voice which he had previously heard, asking "[Name], what do you
want to kill me for?". During the trial, the author's representative
objected to this statement of Mr. Clarke as being hearsay and thus
inadmissible, but the judge ruled it to be admissible, as part of the res
gestae.
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[FNa] The author's initial and subsequent submissions do not provide a
detailed account of the facts. The following description is drawn primarily
from the outline of the facts contained in the judgement of the Court of
Appeal.
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2.3 Mr. Vernon was brought to the Cornwall Regional Hospital in Montego Bay,
where emergency surgery was performed on him. Two police inspectors went to
the hospital shortly after his admission. One of them, upon his arrival in
the casualty ward, heard a voice calling out the author's name and
identifying him as the one who had fired the shots. He later recognized the
voice as being that of the deceased. The inspector conducted a brief
interview with the victim, who was in a serious condition but still
conscious. At the trial, author's counsel again objected to the inspector's
evidence as hearsay and requested that it be excluded, but the judge ruled
the evidence admissible as the "dying declaration of a victim of homicide".
Mr. Vernon succumbed to his injuries later on 28 November or in the early
hours of 29 November 1983.
2.4. The author and his co-defendant claimed that they themselves had been
held up that same evening by three gunmen near the spot where the deceased
had been shot, and gave evidence to this effect during the trial. The
prosecution, however, intended that their account contained so many
discrepancies as to suggest that their version was merely a concoction to
persuade others that they had not perpetrated the crime in question.
2.5. The author appealed against his sentence on the grounds of "unfair
trial" and unreliable evidence", but on 9 July 1986, the Court of Appeal
refused leave to appeal and confirmed the sentence, after counsel for the
author had conceded that there were no grounds of appeal that could be
argued with any hope of success. The Court of Appeal delivered a written
judgement on 24 September 1986. The author submits that his representative
subsequently told him that there was no merit in the case justifying an
appeal to the Judicial Committee of the Privy Council, and that the case
would be placed before the Governor-General for clemency.
3. By decision of 21 July 1987, the Human Rights Committee transmitted the
communication, for information, to the State party and requested it, under
rule 86 the provisional rules of procedure, not to carry out the death
sentence against the author before it had had an opportunity to consider
further the question of the admissibility of the communication. The author
was requested, under rule 91 of the provisional rules of procedure, to
furnish information concerning the facts of his case and the circumstances
of his trial and to provide the Committee with the transcripts of the
written judgements.
4. In a submission dated 21 October 1987, the State party argues that the
communication is inadmissible on the ground of non-exhaustion of domestic
remedies because the case has not yet been adjudicated by the Judicial
Committee of the Privy Council. The State party adds that "[i]n
circumstances such as these a reasonable interpretation of the Optional
Protocol and the Committee's rules of procedure does not yield to the
conclusion that the State party is required to furnish documents and
information in relation to a communication which is patently admissible".
Under cover of a further note dated 10 December 1987, the State Party does,
however, forward a copy of the Notes of Evidence in the author's case.
5. Under cover of a letter dated 10 February 1988, the lawyer who
represented the author before the Court of Appeal forwarded a copy of the
judgement of the Court of Appeal. He states that he had formed the opinion
that there was no merit in the author's case, since the author had been, in
his opinion, properly identified. He ds that the case was not further
pursued with a view to filing a petition for leave to appeal to the Judicial
Committee of the Privy Council.
6. By decision of 16 March 1988, the Working Group of the Human Rights
Committee transmitted the communication to the State party, requesting it,
under rule 91 of the provisional rules of procedure, to provide information
and observations relevant to the question of the admissibility of the
communication. In particular requested the State party to clarify whether
the author retained the right to petition the Judicial Committee of the
Privy Council for leave to appeal and whether legal aid would be available
to him in that respect. The Working Group further requested the State party,
under rule 86 of the rules of procedure, not to carry out the death sentence
against the author while his communication was under consideration by the
Committee.
7. In its submission under rule 91, dated 20 July 1988, the State party
contends that the communication is inadmissible on the ground of
non-exhaustion of domestic remedies because 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. The State party
adds that legal aid would be available to him for this purpose pursuant to
section 3, paragraph 1, of the Poor Prisoners' Defence A.
8. Commenting on the State party's submission, the author, in a letter dated
11 January 1989, states that he has contacted a law firm in London, which he
claims would be willing to assist him for purposes of filing a petition for
leave to appeal to the Privy Council. By phone call of 8 June 1989, author's
counsel in London confirmed that he is preparing a petition on behalf of the
author.
9.1 Before considering any claims contained in a communication the Human
Rights Committee must, in accordance with rule 87 of its provisional rules
of procedure, decide whether or not it is admissible under the Optional
Protocol to the Covenant.
9.2 The Committee has ascertained as it is required to do under article 5,
paragraph 2 (a), of the Optional Protocol, that the matter is not being
examined under another procedure of international investigation or
settlement.
9.3 With respect to the requirement of exhaustion of domestic remedies, the
Committee has noted 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. It observes that
the author, although claiming that there would be no merit in pursuing such
a petition, has obtained pro bono representation for this purpose, and that
his representative it currently preparing a petition for special leave to
appeal on his behalf. The Committee cannot conclude, on the basis of the
information before it, that a petition for special leave to the Privy
Council must be considered a priori futile. It therefore finds that the
requirements of article 5, paragraph 2 (b), the Optional Protocol have not
been met.
10. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under article 5, paragraph 2 (b
of the Optional Protocol;
(b) That, since this decision may be reviewed under rule 92, paragraph 2,
the Committee's provisional rules of procedure upon receipt of a written
request or on behalf of the author containing information to the effect that
the reasons for inadmissibility no longer apply, the State party shall be
requested, taking into account the spirit and purpose of rule 86 of the
Committee's provisional rules of procedure, not to carry out the death
sentence against the author, before he had a reasonable time, after
completing the effective domestic remedies available to him, to request the
Committee to review the present decision;
(c) That this decision shall be transmitted to the State party and to the
author. |
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