18 October 1995

 

Communication No. 373/1989; U.N. Doc. CCPR/C/55/D/373/1989

 
     

human rights committee

  Fifty-Fifth Session  
  16 October – 3 November 1995  
     
     

Lennon Stephens

 

v.

Jamaica

     
     
 

VIEWS

 
     
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BEFORE: CHAIRMAN: Mr. Francisco Jose Aguilar Urbina (Costa Rica)
VICE-CHAIRMEN: Mr. Prafullachandra Natwarlal Baghwati (India), Mr. Tamas Ban (Hungary), Mr. Omran El Shafei (Egypt)
RAPPORTEUR: Mrs. Christine Chanet (France)
MEMBERS: Mr. Nisuke Ando (Japan); Mr. Marco Tulio Bruni Celli (Venezuela); Mr. Thomas Buergenthal (United States); Lord Colville (United Kingdom); Mrs. Elizabeth Evatt (Australia); Mr. Laurel Francis (Jamaica); Mr. Eckart Klein (Germany); Mr. David Kretzmer (Israel); Mr. Rajsoomer Lallah (Mauritius); Mr. Andreas Mavrommatis (Cyprus); Mrs. Cecilia Medina Quiroga (Chile); Mr. Fausto Pocar (Italy); Mr. Julio Prado Vallejo (Ecuador)


All the members of the Committee participated in the fifty-fifth session.

   
PermaLink: http://www.worldcourts.com/hrc/eng/decisions/1995.10.18_Stephens_v_Jamaica.htm
   
Citation: Stephens v. Jam, Comm. 373/1989, U.N. Doc. A/51/40, Vol. II, at 1 (HRC 1995)
Publications: Report of the Human Rights Committee, U.N. GAOR, 51st Sess., Supp. No. 40, U.N. Doc. A/51/40, Vol. II, Annex VIII, sect. A, at 1 (Apr.13, 1997); Office of the U.N. High Comm'r for Human Rights, Selected Decisions of the Human Rights Committee under the Optional Protocol, Vol. V, at 36, U.N. Doc. CCPR/C/OP/5, U.N. Sales No. E.04.XIV.9 (2005)
 
     
 
 
     
 

1.         The author of the communication (initial submission dated 20 July 1989 and subsequent correspondence) is Lennon Stephens, a Jamaican sentenced to death in 1984, currently serving a sentence of life imprisonment at the Rehabilitation Centre in Kingston, Jamaica. He resubmits his complaint which had earlier, on 26 July 1988, been declared inadmissible on the ground of non-exhaustion of domestic remedies, since the author had not then sought leave to appeal to the Judicial Committee of the Privy Council. On 6 March 1989, the Judicial Committee dismissed the author's petition for special leave to appeal. The author now claims to be a victim of violations by Jamaica of articles 7, 9, paragraphs 2 to 4, 10, paragraph 1, and 14, paragraphs 3(c) and 5, of the Covenant. He is represented by counsel.

 

THE FACTS AS SUBMITTED BY THE AUTHOR:

 

2.1       The author is accused of having murdered one George Lawrence in the Parish of Westmoreland, at approximately 11 a.m. on 22 February 1983. The victim's body was never recovered. The prosecution relied on the evidence of three witnesses, which had been working together with, or in the vicinity of, the author on the property of one Mr. Williston at Charlemont, Westmoreland. Thus, witness Linford Richardson testified that he saw the author and the deceased "wrestling" when the gun was discharged. The same witness said that he saw the author wrap the body in tarpaulin and carry it away. A second witness, Sylvester Stone, testified that he heard an explosion, ran outside and saw the author standing "over a man" who was lying on the ground. The third witness, a contractor, stated that he had seen the author running after "a man" (whom he did not identify), that the author caught up with this man, upon which both stopped. The witness testified that the author then took something from his pocket and gestured with it in the direction of the other man, upon which there was an explosion and the other man dropped to the ground.

 

2.2       The author contended, in a sworn statement during the trial, that on the day in question, he was working on the property of Mr. Williston when the deceased approached him with something shaped like a gun under his waist and asked to see Mr. Williston. The author challenged Mr. Lawrence, in the belief that the latter intended to harm Mr. Williston, whereupon the deceased went for the gun. The author wrestled with the deceased, and during the fight, the gun went off and the deceased fell to the ground. The author went home, told his mother what had happened and then surrendered himself to the police.

 

2.3       After surrendering to the police on 22 February 1983, the author was detained. It is submitted that the investigating officer, Detective Inspector Ben Lashley, only cautioned him on 2 March 1983, that is eight days later, telling him that "he was conducting investigations into a case of murder", and that it was alleged "that he shot one George Lawrence".

 

2.4 The author was subsequently accused of murder and tried in the Westmoreland Circuit Court on 21 and 22 February 1984. He was found guilty as charged and sentenced to death on 22 February 1984. His appeal was dismissed by the Court of Appeal on 4 February 1987, nearly three years later. As stated before, the Judicial of the Privy Council dismissed the author's petition for special leave to appeal on 6 March 1989.

 

2.5       As to the course of the trial, the author contends that the trial judge failed to direct the jury properly on the issue of self-defence, although he had indicated that he would do so. He further indicates that one of the prosecution witness was the deceased's uncle, who had had previous serious but unspecified differences with the author.

 

2.6       Throughout trial and appeal, the author was represented by legal aid attorneys. A London law firm represented him pro bono before the Judicial Committee of the Privy Council.

 

2.7       The author contends that he has exhausted domestic remedies. He notes that while he could theoretically still file a constitutional motion, this remedy is not in reality available to him, as he is destitute and no legal aid is made available by the State party for the purpose of constitutional motions.

 

THE COMPLAINT:

 

3.1       Counsel submits that Mr. Stephens is a victim of a violation of articles 7 and 10, paragraph 1, on account of his detention, during 7 years and 10 months, on death row. In this context, he notes that between conviction in February 1984 and his classification as a non-capital offender Under the Offences against the Person (Amendment) Act of 1992., the author was confined to death row under deplorable conditions, constantly facing the prospect of imminent execution. Counsel notes that such a prolonged period of detention under conditions of constant anxiety and "agony of suspense" amounts to cruel and inhuman treatment within the meaning of article 7. Reference is made to the judgment of the Judicial Committee of the Privy Council in the case of Pratt and Morgan, in which the complainants' prolonged detention on death row was held to be contrary to Section 17(1) of the Jamaican Constitution Privy Council Appeal No. 10 of 2 November 1993..

 

3.2       Counsel further claims a violation of article 10, paragraph 1, of the Covenant, on account of the bad conditions of detention the author was and remains subjected to. He does so by reference to two reports from two non-governmental organizations on prison conditions in Jamaica (May 1990) and on deaths and ill-treatment of prisoners at St. Catherine District Prison (where the author was detained until December 1992). These reports complain about gross overcrowding, total lack of sanitation and medical or dental care, inadequate food in terms of nutrition, quantity and quality, and lengthy cellular confinement.

 

3.3       It is submitted that the circumstances of the author's pre-trial detention amount to a violation of article 9, paragraphs 2 to 4. Thus, the trial transcript reveals that the author was detained on 22 February 1983 but only "cautioned" eight days later (2 March 1983). This situation, it is submitted, is contrary to article 9, paragraph 2, which requires that a general description of the reasons for the arrest must be given when it occurs, and that subsequently, the specific legal reasons must be provided. It is claimed that in view of the eight day delay between arrest and "cautioning", the author was not "promptly informed of any charges against him".

 

3.4       The above situation is also said to amount to a violation of article 9, paragraph 3: as Mr. Stephens was only charged eight days after being detained, he was not "promptly" brought before a judicial officer within the meaning of this provision. Reference is made to a number of Views adopted by the Committee See Views adopted in cases Nos. 253/1987 (Paul Kelly v. Jamaica), with individual opinion of Bertil Wennergren, and 277/1988 (Terán Jijón v. Ecuador).. Consequently, his rights under article 9, paragraph 4, were also violated, as he was not afforded in due course the opportunity to obtain, on his own initiative, a decision on the lawfulness of his detention by a court of law.

 

3.5       It is submitted that a delay of almost three years (35½ months) between conviction and appeal amounts to a violation of article 14, paragraphs 3(c) and 5, of the Covenant. Counsel concedes that the reasons for this delay remain unclear, despite many attempts by his law firm and the Jamaica Council for Human Rights to contact the author's lawyer for the trial and to ascertain the reasons for the delay. He emphasizes, however, that Mr. Stephens did nothing to cause, or contribute to, this delay between his conviction and the hearing of the appeal. The same delay is also said to constitute a violation of article 14, paragraph 1, by reference to the Committee's Views in Muñoz v. Peru Communication No.203/1986, adopted on 4 November 1988, paragraph 11.3., where it was held that "the concept of a fair hearing necessarily entails that justice be rendered without undue delay".

 

3.6       Finally, counsel submits that the author has been subjected to ill-treatment by prison warders of St. Catherine District Prison, in violation of articles 7 and 10, paragraph 1, of the Covenant. Thus, in the course of 1991, a warder allegedly hit the author over his head until he lost consciousness, and the author had to be taken to hospital. In a questionnaire filled out by the author for the Jamaica Council for Human Rights, he notes that "he still has problems with his right eye as a result". The Office of the Parliamentary Ombudsman was contacted about the matter, and his office, in a letter dated 21 September 1993 addressed to counsel, replied that the issue "would receive the most prompt attention". However, no further action had been taken by the Ombudsman as of the spring of 1994. Counsel argues that the author has exhausted available domestic remedies in respect of this complaint, as the lack of replies from the Ombudsman and other bodies in Jamaica has made it virtually impossible to pursue the complaint further.

 

THE STATE PARTY'S INFORMATION ON THE ADMISSIBILITY OF THE COMMUNICATION AND AUTHOR'S COMMENTS THEREON:

 

4.1       On 15 September 1989, the communication was transmitted to the State party under rule 86 of the rules of procedure; the State party was requested not to execute the author while his case was pending before the Committee. The State party was further informed that additional clarifications were being sought from the author and his counsel. Some limited clarifications from the author were received in 1990 and 1991. During the 45th Committee's 45th session, it was decided to transmit the communication to the State party under rule 91 of the rules of procedure, seeking information and observations about the admissibility of the case. The request under rule 86 was reiterated. Both requests were transmitted to the State party on 5 September 1992.

 

4.2       In a submission dated 27 April 1993, the State party regrets "that in the absence of a communication setting out the facts on which the author's complaints are based, as well as the articles of the Covenant which are alleged to have been violated, it will not be possible to prepare a response for the Committee". This submission crossed with a reminder sent to the State party by the Committee on 6 May 1993; on 28 July 1993, the State forwarded an additional submission.

 

4.3       In the latter submission, the State party notes that "it appears that the author is complaining of breaches of articles 7 and 10 of the Covenant". In the State party's opinion, this complaint is inadmissible on the ground of non-exhaustion of domestic remedies. Thus, the author retains the right to seek constitutional redress for the alleged violation of his rights, by way of constitutional motion. Furthermore, the author would be entitled "to bring a civil action for damages for assault in relation to any injuries he allegedly sustained as a result of ill-treatment during his incarceration. This is another remedy to be exhausted before the communication is eligible for consideration by the Committee".

 

5.1       In his comments on the State party submissions, dated 17 March 1994, counsel puts forward several new claims, which are detailed in paragraphs 3.1 and 3.3 to 3.5 above. In particular, he submits that a constitutional motion would not be an available and effective remedy in the circumstances of the author's case, as Mr. Stephens is penniless and no legal aid is made available for constitutional motions.

 

5.2       Counsel's comments were transmitted, together with all the enclosures, to the State party on 5 May 1994, with a further request for comments and observations on counsel's submission. No further submission had been received from the State party as of 30 September 1994.

 

THE COMMITTEE'S ADMISSIBILITY DECISION:

 

6.1       During the 52nd session, the Human Rights Committee considered the admissibility of the communication. It noted the State party's criticism referred to in paragraph 4.2 above but recalled that, under the Optional Protocol procedure, it was not necessary for an individual, who claims to be a victim of a violation of any of the rights set forth in the Covenant, explicitly to invoke the articles of the Covenant. It was clearly apparent from the material transmitted to the State party that the author complained about issues related to his conditions of detention and his right to a fair trial.

 

6.2       The Committee noted that part of the author's allegations related to the instructions given by the judge to the jury with regard to the evaluation of evidence and the question of whether self-defence arose in the case. It reaffirmed that it is in principle for the appellate courts of States parties to review specific instructions to the jury by the judge, unless it is clear that said instructions were arbitrary or amounted to a denial of justice, or that the judge manifestly violated his obligation of impartiality. The material before the Committee did not show that the Judge's instructions to the jury in the case suffered from such defects; in particular, the issue of self-defence was put to the jury in some detail. This part of the communication was therefore deemed inadmissible under article 3 of the Optional Protocol.

 

6.3       Concerning the claims under articles 7 and 10 related to the prison conditions in general, the Committee first noted that counsel had addressed the issue of prison conditions by merely by reference to two reports from non-governmental organizations on prison conditions in Jamaica, without addressing Mr. Stephens' personal situation on death row or at the Rehabilitation Centre in Kingston. It is further not apparent that these complaints had ever been brought to the attention of the competent Jamaican authorities. Accordingly, these claims were inadmissible under article 5, paragraph 2(b), of the Protocol.

 

6.4       The Committee noted counsel's contention that the eight years and 10 months which Mr. Stephens spent on death row amounted to a violation of article 7 of the Covenant. While this issue had not been placed before the Jamaican courts by way of constitutional motions, it was uncontested that no legal aid was made available for this purpose, and that the author was dependent on legal aid. In the circumstances, the Committee did not consider a constitutional motion to be an effective remedy in respect of this claim.

 

6.5       With respect of the claim of the author's ill-treatment on death row during 1991, the Committee noted the State party's claim that the case was inadmissible because of the author's failure to file a constitutional motion under Section 25 of the Jamaican Constitution. It recalled that the author and his counsel did attempt to have the alleged ill-treatment of Mr. Stephens investigated, in particular by the Office of the Parliamentary Ombudsman, but without result as of early 1994. It further recalled that the Supreme (Constitutional) Court of Jamaica had, in recent cases, allowed applications for constitutional redress in respect of breaches of fundamental rights, after the criminal appeals in these cases were dismissed. It however also recalls that the State party had repeatedly indicated that no legal aid was available for constitutional motions; as a result, the Committee concluded that, in the absence of legal aid, it was not precluded by article 5, paragraph 2(b), from considering this aspect of the case.

 

6.6       Similar considerations applied to the author's claim under article 9, paragraphs 2 to 4, and 14, paragraphs 3(c) and 5. While it was possible in theory for the author to file a constitutional motion, he was effectively barred from doing so in the absence of legal aid. Mutatis mutandis, the considerations in paragraph 6.4 above applied.

 

6.7       On 12 October 1994, the Committee declared the communication admissible in so far as it appeared to raise issues under articles 7, 9, paragraphs 2 to 4, 10, paragraph 1, and 14, paragraphs 3(c) and 5, of the Covenant.

 

STATE PARTY'S OBSERVATIONS ON THE MERITS AND AUTHOR'S COMMENTS THEREON:

 

7.1       In a submission dated 27 January 1995, the State party challenges counsel's reliance on the judgment of the Judicial Committee of the Privy Council in the case of Pratt & Morgan v. Attorney General of Jamaica in respect of his argument under article 7 of the Covenant (length of detention on death row). By reference to the Committee's own Views of 5 April 1989 in this case where it had been held that delay by itself was not enough to constitute a breach of article 7 of the Covenant CCPR/C/35/D/210/1986 & 225/1987, Pratt and Morgan v. Jamaica, Views adopted 5 April 1989, paragraph 13.6., the State party contends that the Privy Council's judgment in Pratt & Morgan does not remove the necessity of determining on a case-by-case basis whether detention on death row for more than five years violates article 7. In the author's case, his failure to exhaust domestic remedies expeditiously to a large extent resulted in the delay in the execution of the capital sentence against him, prior to re-classification of his conviction to non-capital murder.

 

7.2       As to the alleged violation of article 9, paragraphs 2 to 4, the State party argues that the circumstances of the author's arrest and detention (i.e. that he gave himself up to the police "in respect of the murder of Mr. Lawrence") were such as to make him fully aware of the reasons for arrest and detention. In the circumstances, and given the difficulties the police experienced in locating the body of the deceased, the period of time the author spent in police custody (eight days) must be deemed reasonable. For the State party, the fact that the author surrendered himself to the police reinforces this point.

 

7.3       The State party contends that there is no substantiation in support of the author's claim of a violation of article 14, paragraphs 3(c) and 5. In particular, there is said to be no evidence that the cause for the delay was attributable to an act or omission on the part of the judicial authorities of Jamaica.

 

7.4       As to the alleged ill-treatment of Mr. Stephens on death row during 1991, the State party observes, in a submission of 13 March 1995, that there was no violation of articles 7 and 10(1) since the injuries suffered by the author resulted from the "use of reasonable force by a warder to restrain the applicant who had attacked the warder." Such use of reasonable force, the State party maintains, does not constitute a breach of articles 7 and 10(1). It adds that the warder in question had to seek medical treatment himself as a result of the author's attack on him.

 

8.1       In his comments, counsel reaffirms that Mr. Stephens was subjected to inhuman and degrading treatment by virtue of his confinement, for eight years and 10 months, to death row. He points in particular to the length of the delay and conditions on death row, and submits that an execution that would have taken place more than five years after conviction "would undoubtedly result in pain and suffering", which is precisely why the Judicial Committee recommended commutation to life imprisonment to all death row inmates in Jamaica incarcerated for five years or more.

 

8.2       Counsel dismisses as irrelevant that some of the delays in execution of the sentence may have been attributable to Mr. Stephens and adduces the Privy Council's own argument in Pratt & Morgan, where it is held that "[i]f the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delays and not the prisoner who takes advantage of it".

 

8.3       Counsel reiterates that his client was detained for eight days "presumably incommunicado" without being told that he was being charged for murder. He refers to the Committee's General Comment on article 9, where it is noted that delays under article 9(3) must not exceed a few days, and that pre-trial detention should be an exception. He further observes that a requirement to give reasons on arrest has been imposed under common law and is now laid down in Section 28 of the Police and Criminal Evidence Act of 1984. While he accepts that Mr. Stephens voluntarily went with his mother to Montego Bay Police Station to "report the incident of the death of George Lawrence", he does not accept that it was reasonable in the circumstances to detain the author for eight days without charge.

 

8.4       In this context, he contends that article 9(2) imposes (a) the obligation to give reasons at the time of the arrest and (b) the obligation to inform the person arrested "promptly" of any charges against him. On 22 February 1983, the only information the author was given was that he was under detention "until the police obtained more information". This, it is submitted, does not satisfy the requirements of article 9(2).

 

8.5       As to the alleged violation of article 9(3), counsel refers to the Committee's jurisprudence which emphasizes that delays between arrest and presentation to a judicial officer should not exceed a few days See Views on communication No. 253/1987, Paul Kelly v. Jamaica, adopted on 8 April 1991, paragraph 5.8; communication No. 277/1988, Terán Jijón v. Ecuador, Views adopted on 26 March 1992, paragraph 5.3. . He also points out that in an individual opinion appended to one of these Views by Committee member B. Wennergren, it was submitted that the word "promptly" does not permit of a delay of more than two or three days Individual opinion of Committee member Bertil Wennergren to Views in Kelly v. Jamaica.

 

8.6       Finally, counsel argues that article 9(4) entitles any person subject to arrest or detention to challenge the lawfulness of his/her detention before a court without delay. He refutes the State party's argument that there was no denial of Mr. Stephens' right to do so by the judicial authorities, but rather a failure on the part of the author himself to exercise the right to apply for writ of habeas corpus.

 

8.7       In a further submission dated 21 April 1995, counsel contends that without providing the evidence of an official report into the incident involving beatings of the author by a warder in 1991, the State party cannot dismiss the author's claim that he was subjected to inhuman and degrading treatment. He argues that the State party's reliance on the use of "reasonable force" to restrain the applicant who had attacked a warder is misleading, as both article 3 of the U.N. Code of Conduct for Law Enforcement Officials and the Correctional Rules of Jamaica prescribe behaviour which promotes the rehabilitation and humane treatment of detainees, which implies that force may be used only when "strictly necessary".

 

8.8       Counsel refers to a report prepared in 1983 by the Parliamentary Ombudsman of Jamaica, in which he observed that Jamaican prison rules were systematically broken and that there were "merciless and unjustifiable beatings" of inmates by prison warders. Furthermore, the Jamaica Council for Human Rights is said to have been inundated with cases of abuse of prisoners since it was created in 1968. In addition, counsel points out that several prisoners have died following clashes between warders and inmates; the circumstances of the deaths of inmates often remain unclear and suspicious. Other prisoners are said to be targeted for abuse simply because they were witnesses to beatings and killings by prison warders. Four such incidents occurred on 28 May 1990 (death of three inmates as a result of injuries inflicted by prison staff), on 30 June 1991 (four inmates killed by other inmates, who reportedly had been paid by prison warders), on 4 May 1993 and on 31 October 1993 (four inmates shot dead in their cells).

 

8.9       It is submitted that in the light of this history of violence in the death row section of St. Catherine District Prison, the State party has in no way shown that the author was not a victim of violations of articles 7 and 10(1) in the course of 1991. By reference to rule 173 of the Correctional Rules of Jamaica and Rule 36 of the UN Standard Minimum Rules for the Treatment of Prisoners, which deal with internal complaints procedures, counsel submits that prisoners in Jamaica do not receive adequate redress from the prisons' internal complaints procedures. Some of them may be subjected to retaliatory measures if they testify against warders who have committee abuses. He reiterates that he has never been able to obtain a copy of the investigation into the beatings of Mr. Stephens, and continues to question that the warder who injured his client used "no more force that [was] necessary" (Rule 90 of the Correctional Rules of Jamaica).

 

Examination of the merits:

 

9.1       The Human Rights Committee has examined the present communication in the light of all the information made available to it by the parties, as it is required to do under article 5, paragraph 1, of the Optional Protocol, and bases its Views on the following findings.

 

9.2       The Committee has noted the author's contention that his rights under articles 7 and 10(1) have been violated because of the beatings he was subjected to on death row by a prison warder. It observes that while the author's allegation in this respect has remained somewhat vague, the State party itself concedes that the author suffered injuries as a result of use of force by warders; the author has specified that these injuries were to his head, and that he continues to have problems with his right eye as a sequel. The Committee considers that the State party has failed to justify, in a manner sufficiently substantiated, that the injuries sustained by the author were the result of the use of "reasonable force" by a warder. It further reiterates that the State party is under an obligation to investigate, as expeditiously and thoroughly as possible, incidents of alleged ill-treatment of inmates. On the basis of the information before the Committee, it appears that the author's complaint to the Ombudsman was acknowledged but neither investigated thoroughly nor expeditiously. In the circumstances of the case, the Committee concludes that the author was treated in a way contrary to articles 7 and 10, paragraph 1, of the Covenant.

 

9.3       The Committee has noted counsel's argument that the eight years and 10 months Mr. Stephens spent on death row amounted to inhuman and degrading treatment within the meaning of article 7. It is fully aware of the ratio decidendi of the judgment of the Judicial Committee of the Privy Council of 2 November 1993 in the case of Pratt and Morgan, which has been adduced by counsel, and has taken note of the State party's reply in this respect.

 

9.4       In the absence of special circumstances, none of which are discernible in the present case, the Committee reaffirms its jurisprudence that prolonged judicial proceedings do not per se constitute cruel, inhuman and degrading treatment, and that, in capital cases, even prolonged periods of detention on death row cannot generally be considered to constitute cruel, inhuman or degrading treatment. See Views on communications Nos. 270/1988 and 271/1988, Barrett and Sutcliffe v. Jamaica, adopted on 30 March 1992, paragraph 8.4. In the instant case, a little over five years passed between the author's conviction and the dismissal of his petition for special leave to appeal by the Judicial Committee; he spent another three years and nine months on death row before his sentence was commuted to life imprisonment under the Offences against the Person (Amendment) Act of 1992. Since the author was, at that time, still availing himself of remedies, the Committee does not consider that this delay constituted a violation of article 7 of the Covenant.

 

9.5       The author has alleged a violation of article 9(2), because he was not informed of the reasons for his arrest promptly. However, it is uncontested that Mr. Stephens was fully aware of the reasons for which he was detained, as he had surrendered himself to the police. The Committee further does not consider that the nature of the charges against the author were not conveyed "promptly" to him. The trial transcript reveals that the police officer in charge of the investigation, a detective inspector from the parish of Westmoreland, cautioned Mr. Stephens as soon as possible after learning that the latter was kept in custody at the Montego Bay Police Station (pp. 54-55 of trial transcript). In the circumstances, the Committee finds no violation of article 9, paragraph 2.

 

9.6       As to the alleged violation of article 9(3), it remains unclear on which exact day the author was brought before a judge or other officer authorized to exercise judicial power. In any event, on the basis of the material available to the Committee, this could only have been after 2 March 1983, i.e. more than eight days after Mr. Stephens was taken into custody. While the meaning of the term "promptly" in article 9(3) must be determined on a case by case basis, the Committee recalls its General Comment on article 9 General Comment 8[16] of 27 July 1982, paragraph 2. and its jurisprudence under the Optional Protocol, pursuant to which delays should not exceed a few days. A delay exceeding eight days in the present case cannot be deemed compatible with article 9, paragraph 3.

 

9.7       With respect to the alleged violation of article 9(4), it should be noted that the author did not himself apply for habeas corpus. He could have, after being informed on 2 March 1983 that he was suspected of having murdered Mr. Lawrence, requested a prompt decision on the lawfulness of his detention. There is no evidence that he or his legal representative did do so. It cannot, therefore, be concluded that Mr. Stephens was denied the opportunity to have the lawfulness of his detention reviewed in court without delay.

 

9.8       Finally, the author has alleged a violation of article 14, paragraphs 3(c) and (5), on account of the delay between his trial and his appeal. In this context, the Committee notes that during the preparation of the author's petition for special leave to appeal to the Judicial Committee of the Privy Council by a London lawyer, Mr. Stephens' legal aid representative for the trial was requested repeatedly but unsuccessfully to explain the delays between trial and the hearing of the appeal in December 1986. While a delay of almost two years and 10 months between trial and appeal in a capital case is regrettable and a matter of concern, the Committee cannot, on the basis of the material before it, conclude that this delay was primarily attributable to the State party, rather than to the author.

 

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 reveal a violation by Jamaica of articles 7, 9, paragraph 3, and 10, paragraph 1, of the Covenant.

 

11.       The Committee is of the view that Mr. Stephens is entitled, under article 2, paragraph 3(a), of the Covenant, to an appropriate remedy, including compensation and further consideration of his case by the State party's Parole Board.

 

12.       Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's Views.

 
     

 

 

 

   

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