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U.N. Doc. CCPR/C/58/D/617/1995 |
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Communication No. 617/1995 17 October 1996 |
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human rights committee |
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| 58th Session | |||||||||||||
| 21 October – 8 November 1996 | |||||||||||||
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Anthony Finn |
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v. |
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Jamaica |
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Decision |
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1. The author of the communication is Anthony
Finn, a Jamaican citizen who at the time of submission of his communication
was awaiting execution at St. Catherine District Prison, Jamaica. He claims
to be a victim of violations by Jamaica of articles 7; 9, paragraph 3; 10,
paragraph 1; and 14, paragraphs 1, 2, 3 (b), (c) and 5, of the International
Covenant on Civil and Political Rights. He is represented by counsel. The
author's death sentence was commuted in early 1995. The facts as submitted by the author 2.1 The author was arrested in December 1987, and charged, together with Junior Leslie [FN1] and one L.T., with the murders, on 8 November 1987, of Mercelin Morris and Dalton Brown. The preliminary hearing was held on 14, 21 and 22 of March 1988 at the Kingston Gun Court. On 4 April 1990, the author and Junior Leslie were found guilty as charged and sentenced to death by the Kingston Circuit Court; L.T. was acquitted on the direction of the trial judge at the close of the prosecution's case. The author then applied to the court of Appeal of Jamaica for leave to appeal against conviction and sentence, but subsequently he signed a notice of abandonment. Nevertheless, the Court of Appeal decided to consider the author's application together with Mr. Leslie's application; it dismissed their appeal on 15 July 1991. The Judicial Committee of the Privy Council dismissed the author's petition for special leave to appeal on 12 January 1995. With this, it is submitted, all domestic remedies have been exhausted. ------------------------------------------------------------------------------------------------------------------------------- [FN1] Mr. Leslie's communication No. 564/1993 is before the Human Rights Committee; it was declared admissible on 12 October 1995 at the 55th session. ------------------------------------------------------------------------------------------------------------------------------- 2.2 The prosecution relied on the testimony of the deceased's daughter [respectively sister], Carol Brown, and grandson [respectively nephew], Orlando Campbell. Carol Brown testified that, on 8 November 1987 at about 8:00 p.m., her mother and Orlando Campbell were inside the house; she herself was sitting at the doorway and her brother, Dalton Brown, was in the yard with a friend, one C. The yard was lit by a 100 watt bulb on the exterior wall, and by lights within the house. Suddenly two armed men, whom she identified as the author and Junior Leslie, entered the yard. Immediately thereafter she heard explosions and she ran away. She stopped two houses further along, heard several more explosions, and saw C. running past her, followed by the author and Junior Leslie, who were still holding guns. Her mother, covered with blood, ran towards her, and told her that her brother had been shot. Her mother and brother died in hospital. Carol Brown testified that she knew the author for about eight years, and that she had last seen him some three to four weeks prior to the incident. With respect to Junior Leslie, she stated that she had first seen him one week prior the incident, when he was pointed out to her as one of the persons involved in the beating and stabbing of her brother two weeks earlier. 2.3 Orlando Campbell testified that, on the night of the incident, he was in bed when he saw his uncle, Dalton Brown, followed by the author, running into the house. His uncle held on to his grandmother, who tried to block the author. He then saw the author shooting his grandmother. Having turned his face to the wall, he then heard the author calling his uncle, followed by several explosions, and he heard his uncle begging for mercy. More shooting from different directions, followed and he then heard the author talking to another person. Orlando Campbell testified that he saw the author, whom he knew, leaving through the gate, followed by short stout person whose face he could not see, and by co-defendant L.T., whom he also knew. 2.4 No identification parade was held in the case; during the trial, i.e. 29 months after the murders, Carol Brown identified the author from the dock. 2.5 The author presented an alibi defence. He testified at the trial, inter alia, that on 8 November 1987 he was at home with his family in the afternoon and that he went to bed at around 9:00 p.m. No witnesses were called on his behalf. 2.6 It appears from the Court of Appeal's written judgment that the author was represented by the same legal aid lawyer that had represented him at trial. It further appears that the lawyer informed the Court that "he had read the record and consulted a colleague, who agreed with him, that there was no arguable point of substance which he could put forward. He had so advised the author who had signed a notice of abandonment". The Court stated: "We do not propose to regard the application as abandoned and will deal with it as if it were still extant". After having reviewed the case, and having dismissed the grounds of appeal argued by Mr. Leslie's lawyer, the Court stated: "With respect to the other applicant (i.e. the author), we are of the view that the case against him was quite strong. Two witnesses, one of whom grew up with him, identified him. [...]. Our review of the facts and circumstances and our analysis of the summing-up compel us to agree entirely with the view expressed by counsel. We were assured by him that he had personally communicated his view to this applicant who signed notice of abandonment." 2.7 The principal grounds on which the author's petition for special leave to appeal was based were that: - the trial judge failed to prevent a dock identification by Carol Brown of the author; - the investigating officer was permitted to give evidence that he had taken a statement from the deceased Mercelin Morris and to suggest that the statement implicated the author. It was submitted that the indirect admission of the inculpatory statement by the deceased was improper and highly prejudicial; - the trial judge perpetuated this injustice by inviting the jury to draw the inference that the deceased implicated the accused; - the trial judge failed to direct the jury's attention to the specific weakness and inconsistencies of the identification evidence given by the prosecution witnesses. 2.8 Counsel refers to the Committee's jurisprudence on the question of whether a constitutional motion is an available remedy which an author should exhaust, in light of article 5, paragraph 2(b), of the Optional Protocol; he contends that this remedy is not available to Mr. Finn because of his lack of funds and the unavailability of legal aid for the purpose of filing a constitutional motion. He concludes that it is extremely difficult to find a Jamaican lawyer who is willing to represent applicants, on a pro bono basis, for the purpose of a constitutional motion, and that it is therefore the State party's inability or unwillingness to provide legal aid for such motions which absolves Mr. Finn from pursuing any constitutional remedies. The complaint 3.1 With regard to articles 7 and 10 paragraph 1, of the Covenant, counsel points out that the author has been on death row for almost five years now. It is submitted that the "agony of suspense" resulting from such long awaited and expected execution of the death sentence amounts to cruel, inhuman and degrading treatment, as is reflected in the decision of the Judicial Committee of the Privy Council in the case of Earl Pratt and Ivan Morgan v. the Attorney-General of Jamaica [FN2], and in the decision of the Supreme Court of Zimbabwe in the case of the Catholic Commission for justice and Peace in Zimbabwe [FN3]. Counsel concludes that, although the Privy Council suggested a delay of five years as a guideline, the delay in the author's case of four years and nine months is in itself inhuman and degrading, and that, for the reasons set out above, Mr. Finn is unable to file a constitutional motion to test the legality of execution after a delay of four years and nine months. ------------------------------------------------------------------------------------------------------------------------------- [FN2] Privy Council Appeal No. 10 of 1993; judgment delivered on 2 November 1993. ------------------------------------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------------------------------------------------- [FN3] Judgment No. SC73/93, unreported, delivered on 24 June 1993. ------------------------------------------------------------------------------------------------------------------------------- 3.2 Furthermore, counsel refers to a questionnaire completed by the author for the purpose of his communication to the Human Rights Committee, in which he describes, inter alia, the circumstances of his arrest and detention by the police. In this context, he claims the following: "Rainy. Curfew 5:00 - 5:30 a.m. Soldiers and police. I was in bed [...] and taken on the rod where I joined several other men, who were lying face down on the road. I was ordered to lay face down with the other men. Next. From this scene to the police lock up ... I was beaten. Abusive language was used. Threats were made, and against my life. I was ill for quite some time. No medical treatment was given. I made complaints to the high authority at the police station, but my complaint fell on deaf ears; and I was further abused. I also made complaints to my lawyer". It is submitted that the treatment the author was subjected to by the police, and the subsequent lack of medical treatment, is in violation of articles 7 and 10, paragraph 1, of the Covenant, as well as of articles 24, 25 and 26 of the Standard Minimum Rules for the Treatment of Prisoners. It is further submitted that the author has made all reasonable efforts to seek redress for the ill treatment suffered by complaining to the police authorities and to his lawyer, and that he therefore has fulfilled the requirements of article 5, paragraph 2(b), of the Optional Protocol, in respect of this claim. 3.3 Counsel adduces documentary evidence of the inhuman conditions of detention at St. Catherine District Prison. In this context, it is submitted that the prison is holding more than twice the capacity for which it was constructed in the 19th century; that there are no mattresses, other bedding or furniture in the cells; that there is a constant shortage of soap, tooth paste and toilet paper; that there is no integral sanitation in the cells; that the quality of food and drink is very poor; that there are only small air vents through which natural light can enter the cells; that there is a lack of recreational, rehabilitation and other facilities; and that no doctor is attached to the prison with the result that medical problems are generally treated by warders who receive very limited training. The particular circumstances in the author's case are that he is confined to his cell for twenty-two hours each and every day, that the spends this time in darkness, and with nothing to keep him occupied. The conditions under which the author is detained are said to amount to violations of articles 7 and 10, paragraph 1, of the Covenant, as well as of articles 10, 11, 12, 19, 20 and 22 of the Standard Minimum Rules for the Treatment of Prisoners. 3.4 The author claims undue delay in the judicial proceedings against him, in violation of articles 9, paragraph 3, and 14, paragraph 3 (c), of the Covenant. In this context, he points out that there was a delay of two years and five months between his arrest (early December 1987) and the trial (2 to 4 April 1990). 3.5 It is submitted that the author's rights under article 14, paragraphs 1 and 2, have been violated, because in his summing-up to the jury, the trial judge aggravated the prejudice caused earlier to the author (by the allegedly wrongful admission of hearsay evidence) by referring again to the hearsay evidence and suggesting that it was as a result of that evidence that the author was arrested. The author's rights under these provisions are further said to have been violated because the judge allowed the prosecution witness to identify the author in court. 3.6 As to the preparation of his defence, the author contends that an attorney was first made available to him one month and two weeks after his arrest. He claims that he did not meet with his attorney before the preliminary hearing. He was assigned another lawyer for the trial, and he claims that, prior to the trial, he only met with his lawyer once, and only for fifteen minutes. He further claims that, during the trial, he was not able to discuss the progress of the trial with his lawyer. Finally, in respect of his appeal, he claims that he only met once with his lawyer (who had also represented him at the trial) before the hearing. The above is said to amount to a violation of article 14, paragraph 3(b) and (d). 3.7 As to a violation of article 14, paragraph 5, reference is made to the relevant paragraph in the Court of Appeal's written judgment, where the author's lawyer stated before the Court of Appeal that he could not find any grounds to argue on his client's behalf, and that he had advised his client to this effect, who had consequently signed a notice of abandonment. The author claims, in a letter addressed to London counsel, dated 28 October 1994, that he signed the notice of abandonment of appeal for the following reasons: "The reason [his lawyer] gave me is that my case was in progress at the Appeal Court and he did not have every thing together, so he is trying to put off the case so I must sign this paper. I did not put under pressure to sign the notice, but it seem I was trick into something I did not understand". Counsel submits that it is clear that the author did not understand the legal effect of signing the notice of abandonment and that he believed that this would merely postpone the hearing. He concludes that the author must have been prejudiced by the notice of abandonment of appeal and by the opinion put forward by his lawyer to the Court of Appeal. The State party's information and observations on admissibility and the author's comments thereon 4.1 In its submission under rule 91, the State party does not contest the admissibility of the communication but rather and in order to expedite consideration of the case offers comments on the merits of the communication. 4.2 The State party by submission dated 6 March 1995, contends that there has been no violation of articles 7 and 10, paragraph 1, of the Covenant on the basis that the Privy Council judgment in Pratt and Morgan is not an authority for the proposition that the incarceration on death row for a specific period of time constitutes cruel, inhuman and degrading. Each case must be examined on its own facts, in accordance with applicable legal principals. 4.3 With respect to the delay of 2 years and 5 months between arrest and trial, the State party contends that a preliminary hearing was held during that period and that consequently the delay cannot be considered excessive or in violation of articles 7; 9, paragraph 3; and 14, paragraph 3(c), of the Covenant. 4.4 With respect to the allegations of unfair trial for the wrongful admission of hearsay evidence on the part of the trial judge, in violation of article 14, paragraphs 1 and 2, of the Covenant, the State party refers to the Committee's own jurisprudence, in respect of the evaluation of facts and evidence (Communication No. 237/1987). 4.5 With regard to the allegation of a violation of article 14, paragraph 3 (b), because the author was unable to consult with his legal aid attorney, the State party contends that it is unfair to hold the State party accountable for the professional conduct of legal aid counsel. 4.6 Finally, the State party contends that there has been no violation of article 14, paragraph 5, of the Covenant, in the circumstances that surrounded the author's appeal, because even though the author had signed a notice to abandon the appeal, the Court of Appeal ignored this and heard the application. 5.1 In her comments, dated 18 April 1995, counsel objects to the consideration of the merits at this stage. However, she offers comments on the State party's submission, but points out that the State party has not addressed all the claims. In this respect, counsel states that the State party has not rebutted the allegations regarding the author's ill-treatment while in pre-trial detention and at St. Catherine District Prison. 5.2 With regard to the claims of delay; the judges instructions, the dock identification of the author; the State party's responsibility for the professional conduct of legal aid counsel; the abandonment of appeal and the death row phenomenon; counsel reiterates the allegations made in her initial submission. Issues and proceedings before the Committee 6.1 Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant. 6.2 The Committee has ascertained, as required under article 5, paragraph 2 (a), of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement. 6.3 As to the requirement in article 5, paragraph 2 (b), of the Optional Protocol that domestic remedies be exhausted, the Committee observes that with the dismissal of the author's petition for special leave to appeal by the Judicial Committee of the Privy Council on 12 January 1995, the author exhausted domestic remedies for purposes of the Optional Protocol. 6.4 The Committee considers that the author and his counsel have sufficiently substantiated his claim for purposes of admissibility, that the communication may raise issues under articles 9, paragraph 3 and 14, paragraph 3 (c), of the Covenant, which need to be examined on the merits. 6.5 With regard to the author's claim that the length of his detention on death row amounts to a violation of articles 7 and 10 of the Covenant, the Committee refers to its prior jurisprudence that detention on death row does not per se constitute cruel, inhuman or degrading treatment in violation of article 7 of the Covenant, in the absence of some further compelling circumstances. [FN4] The Committee observes that the author has not shown which circumstances raise an issue under articles 7 and 10 of the Covenant concerning the length of detention. This part of the communication is therefore inadmissible under article 2 of the Optional Protocol. ------------------------------------------------------------------------------------------------------------------------------- [FN4] See Committee's Views on communication No. 588/1994 (Errol Johnson v. Jamaica), adopted on 22 March 1996, paragraphs 8.2 to 8.5. --------------------------------------------------------------------------------------------------------------------- 6.6 As to the claim under articles 7 and 10, paragraph 1, with respect to the author's arrest and his pre-trial detention, and the prison conditions he suffered, while on death row, at St. Catherine's District Prison the Committee notes that he brought the lack of medical treatment to the attention of the authorities and to that of his counsel. As no reply or follow-up was given to his complaints, the Committee considers that, in this respect, the author has met the requirements of article 5, paragraph 2(b), of the Optional Protocol. It finds that the author's claims about ill-treatment in detention have been sufficiently substantiated and should be examined on the merits. 6.7 With respect to the author's claim that he was not properly represented by his legal aid counsel on trial in violation of article 14, paragraph 3 (b) and (d), the Committee recalls its prior jurisprudence that it is not for the Committee to question counsel's professional judgement, unless it was or should have been manifest to the judge that the lawyer's behaviour was incompatible with the interests of justice. In the instant case, there is no reason to believe that counsel was not using his best judgment. Additionally, the Committee recalls that article 14, paragraph 3 (d) does not entitle the accused to choose counsel provided to him free of charge. The Committee finds therefore that in this respect, the author has no claim under article 2 of the Optional Protocol. 6.8 With regard to the author's claim concerning his representation on appeal and the circumstances in which he signed a notice of abandonment, the Committee notes from the information before it that counsel did in fact consult with the author prior the hearing, and that, in accordance with its practice in all capital cases, at the hearing the Court of Appeal examined the case even though the author had signed a notice to abandon the appeal. The Committee recalling its prior jurisprudence considers that this part of the communication is therefore inadmissible, not raising a claim within any of the provisions of the Covenant, under article 2 of the Optional Protocol. 6.9 The author's remaining allegations concerns claims about irregularities in the court proceedings, improper instructions from the judge to the jury on the issue if identification. The Committee reiterates that, while article 14 guarantees the right to a fair trial, it is not 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. The material before the Committee does not show that the judge's instructions suffered from such defects. Accordingly, this part of the communication is inadmissible as incompatible with the provisions of the Covenant, pursuant to article 3 of the Optional Protocol. 7. The Human Rights Committee therefore decides: (a) that the communication is admissible in as much as it appears to raise issues under articles 7, and 10 paragraph 1 in respect of the treatment the author received when he was arrested and the conditions of his imprisonment and articles 9, paragraph 3 and 14, paragraph 3 (c), of the Covenant in respect of the delay in the judicial proceedings; (b) that, in accordance with article 4, paragraph 2, of the Optional Protocol, the State party shall be requested to submit to the Committee, within six months of the date of the transmittal to it of this decision, written explanations or statements clarifying the matter and the measures, if any, that may have been taken by it; (c) that any explanations or statements received from the State party shall be communicated by the Secretary-General under rule 93, paragraph 3, of the rules of procedure to the author, with the request that any comments which he may with to make should reach the Human Rights Committee, in care of the Centre for Human Rights, United Nations Office in Geneva, within six weeks of the date of the transmittal; (d) that this decision shall be communicated to the State party and to the author and to his counsel. |
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