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1. The author of the
communication (initial submission dated 5 August 1988 and subsequent
correspondence) is Howard Martin, a Jamaican citizen currently awaiting
executing at St. Catherine District Prison, Jamaica. He claims to be the
victim of a violation of articles 6, 7, 10 and 14 of the International
Covenant on Civil and Political Rights by Jamaica. He is represented by
counsel.
Facts as submitted
2.1 The author states that he was sentenced to death on 17 February 1981 in
the Home Circuit Court of Kingston for the murder, on 22 September 1979, of
one Rupert Wisdom. The Jamaican Court of Appeal dismissed his appeal on 11
November 1981. In February 1988, a warrant for his execution was issued.
After 17 days, however, he was granted a last minute stay, because a
petition for special leave to appeal to the Judicial Committee of the Privy
Council was being prepared on his behalf. On 11 July 1988, the author's
petition for special leave to appeal was dismissed by the Judicial Committee
of the Privy Council. The Judicial Committee of the Privy Council did,
however, express grave concern about the delays in the case, and stated "...
that attention should be given to devising procedures which will eliminate
distressful delays of this character".
2.2 As to the facts, the author states that on the evening of 22 September
1979, he had been engaged in a heated discussion with a female acquaintance
outside the gate of her home. Mr. Wisdom, who lived at the same premises,
approached them, told the author to leave and allegedly struck him on the
forehead with a bottle. The author then grabbed a piece of steel lying on
the ground and turned to the alleged attacker, who had been following him.
In the fight that ensued, Mr. Wisdom was fatally injured.
2.3 As to the trial proceedings, the author submits that during the
preliminary inquiry, the evidence given by two eye-witnesses was
contradictory. Only one of them testified during the trial, and the author
alleges that her evidence was at odds with her previous statement. When the
author's representative questioned her, he was interrupted by the trial
judge, who ruled out further cross-examination on the matter. The author
further submits that this witness was a close friend of the police officer
in charge of the investigations of his case and that she was accompanied by
this police officer to the court each day.
Complaint
3.1 The author claims that his trial was unfair, and that the trial judge
erred in not directing the jury on the issue of involuntary manslaughter. He
argues that it was clear from the evidence in the case that it was more than
doubtful whether he had any intent to kill or cause grievous bodily harm;
even though his attorney had not relied on this defence argument, the Judge
was under a duty to address it. Further, he claims that the Judge erred in
law while summing up the case for the jury, inter alia with respect to the
issues of self-defence, provocation and the author's intent.
3.2 Referring to the delays in the execution of his death sentence, the
author contends that they are contrary to due process of law and to Section
14, paragraph 1, of the Jamaican Constitution, which stipulates that an
accused person's trial and the execution of the sentence handed down should
take place within a reasonable time. Furthermore, he alleges that the delay
in the execution of the sentence is contrary to Section 17, paragraph 1, of
the Constitution, which lays down that no person shall be subjected to
torture or to degrading punishment or treatment. He argues that the length
of time spent on death row and the permanent anxiety he lives in constitutes
such degrading treatment.
3.3 The author further claims that his 17 days' stay in the death cell,
after a warrant for his execution was issued and before the last minute
reprieve, caused him unnecessary mental and physical suffering, in violation
of article 7 of the Covenant.
State party's observations and the author's comments thereon
4. In its submission under rule 91, dated 1 December 1988, the State party
argues that the communication is inadmissible pursuant to article 5,
paragraph 2 (b), of the Optional Protocol, because the author has failed to
exhaust domestic remedies available to him under Section 25 of the
Constitution.
5. By a letter dated 9 May 1989, author's counsel contests that the
procedure referred to by the State party is an effective domestic remedy
within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.
He argues that the State party does not provide legal aid with respect to a
constitutional motion before the Supreme Court of Jamaica. Accordingly, the
author cannot avail himself of the remedy indicated by the State party,
since he cannot afford to instruct a lawyer. Counsel further observes that
the Jamaica Council for Human Rights has tried in vain to solicit the
services of a lawyer to prepare, on a no-fee basis, a constitutional motion
on behalf of the author.
Committee's decision on admissibility
6.1 At its thirty-eighth session, the Committee considered the admissibility
of the communication. It noted the State party's contention that the
communication was inadmissible because of the author's failure to pursue
constitutional remedies available to him. In this connection, the Committee
observed, taking into account the absence of legal aid for filing a
constitutional motion and the unwillingness of Jamaican counsel to act in
this regard without remuneration, that recourse to the Supreme 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 The Committee further considered that part of the author's allegations
concerning irregularities in the court proceedings were inadmissible under
article 3 of the Optional Protocol, since it is, in principle, beyond the
competence of the Committee to review specific instructions to the jury in a
trial by jury.
6.3 On 15 March 1990, the Committee declared the communication admissible in
so far as it might raise issues under articles 7 and 14, paragraphs 3 (c)
and 5 of the Covenant.
Review of admissibility
7. The State party, in its submissions dated 11 February 1991 and 14 January
1992, challenges the Committee's admissibility decision and maintains that
the communication is inadmissible. It argues that the author has
constitutional remedies he may still pursue. It submits that, in the light
of cases recently decided by the Supreme (Constitutional) Court, it is clear
that this Court has jurisdiction to allow applications for redress with
regard to cases in which criminal appeals have been dismissed. It further
argues that the absence of legal aid does not relieve a person of the
obligation to exhaust domestic remedies. It submits that nothing in the
Covenant imposes upon a State party the duty to provide legal aid other than
to an accused in the determination of a criminal charge against him.
8. In his comments on the State party's request for review of the
admissibility decision, author's counsel argues that, while it is in theory
possible for the author to file a constitutional motion, in practice the
absence of legal aid and the unwillingness of lawyers to provide legal
assistance in these matters without remuneration renders this right
illusory.
9. The Committee has taken note of the arguments submitted to it by the
State party and reiterates that domestic remedies within the meaning of the
Optional Protocol must be both available and effective. The Committee
considers that, in the absence of legal aid, a constitutional motion does
not, in the specific circumstances of the instant case, constitute an
available remedy within the meaning of article 5, paragraph 2 (b), of the
Optional Protocol, which the author should still exhaust. [FN1] There is
therefore no reason to revise the Committee's earlier decision on
admissibility of 15 March 1990.
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[FN1] See also the Committee's views in communications Nos. 230/1987
(Raphael Henry v. Jamaica) and 283/1988 (Aston Little v. Jamaica), adopted
on 1 November 1991, paras. 7.1 et seq.
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Examination of the merits
10. In its submission, dated 14 January 1992, the State party denies that
the Covenant was violated in the author's case. It submits that the delay in
carrying out the death sentence against the author resulted from the
author's exercise of his right to appeal against conviction and sentence to
the Judicial Committee of the Privy Council. As regards the alleged
violation of article 14, paragraph 5, of the Covenant, the State party
argues that the author has appealed his conviction to the Court of Appeal
and the Judicial Committee of the Privy Council, and thus has not been
denied the right to have his conviction and sentence reviewed by a higher
tribunal.
11. In his comments on the State party's submission, author's counsel argues
that the delay in carrying out the death sentence cannot be attributed to
the exercise by the author of the right to further appeal his conviction. He
submits that the author was being held on death row for over six years
before a warrant for his execution was issued, and that an appeal to the
Privy Council was only lodged on his behalf on 25 May 1988, after he had
obtained a stay of execution in February 1988.
12.1 The Committee has considered the communication in the light of all the
information made available to it by the parties, as required under article
5, paragraph 1, of the Optional Protocol.
12.2 As to the author's allegation that his prolonged stay on death row
constitutes cruel, inhuman or degrading treatment, the Committee refers to
its jurisprudence in communications Nos. 270 and 271/1988 [FN2] and
reiterates that prolonged judicial proceedings do not per se constitute
cruel, inhuman or degrading treatment, even if they may be a source of
mental strain and tension for detained persons. In the instant case, the
delay between the judgement of the Court of Appeal and the dismissal of the
author's petition to the Judicial Committee of the Privy Council has been
disturbingly long. However, the evidence before the Committee indicates that
the Court of Appeal promptly produced its written judgement and that the
ensuing delay in petitioning the Judicial Committee was largely attributable
to the author. In the circumstances of the present case, the Committee
affirms its jurisprudence that even prolonged periods of detention under a
severe custodial regime on death row cannot generally be considered to
constitute cruel, inhuman or degrading treatment if the convicted person is
merely availing himself of appellate remedies.
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[FN2] Randolph Barrett and Clyde Sutcliffe v. Jamaica, views adopted on 30
March 1992.
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12.3 The author further alleges that the delay of 17 days between the
issuing of the warrant for his execution and its stay, during which time he
was detained in a special cell, constitutes a violation of article 7 of the
Covenant. The Committee observes that, after the warrant had been issued, a
stay of execution was requested, on the grounds that counsel would prepare a
petition for leave to appeal to the Judicial Committee of the Privy Council.
This stay of execution was subsequently granted. Nothing in the information
before the Committee indicates that the applicable procedures were not duly
followed, or that the author continued to be detained in the special cell
after the stay of execution had been granted. The Committee therefore finds
that the facts before it do not disclose a violation of article 7 of the
Covenant.
12.4 The author also alleges that his trial suffered from undue delay and
that he was denied the right to have his conviction and sentence reviewed by
a higher tribunal. The Committee observes that the author was convicted and
sentenced by the Circuit Court of Kingston on 17 February 1981 and that his
appeal was dismissed by the Court of Appeal on 11 November 1981. The
Committee notes that the subsequent delay in obtaining a hearing before the
Judicial Committee of the Privy Council, which dismissed special leave to
appeal on 11 July 1988, is primarily attributable to the author, who did not
file his petition to the Judicial Committee until after a warrant for his
execution had been issued in 1988, six and a half years after the Court of
Appeal's judgement. The Committee therefore concludes that the facts before
it do not disclose a violation of article 14, paragraphs 3 (c) and 5, of the
Covenant.
13. 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 any of the provisions of the International Covenant on Civil and
Political Rights. |
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