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1. The author of the
communication is Lenford Hamilton, a Jamaican citizen under sentence of
death, detained at St. Catherine District Prison, Jamaica. He claims to be a
victim of violations by Jamaica of articles 7 and 14 of the International
Covenant on Civil and Political Rights. He is represented by counsel.
The facts as submitted by the author
2.1 The author was convicted for the shooting and killing of a policeman,
Caswell Christian, on 27 February 1981 in the parish of St. Catherine. The
deceased and other police officers were in the process of searching a number
of houses in the ghetto area of Tawes Pen when he was shot from behind a
curtain in the living room of an apartment that was being searched. It was
submitted that at least two police officers had seen the author running away
from the block of apartments where the shooting had taken place. The author
indicates that he was not arrested until almost 17 months later, on 23 July
1982. He claims that he was not placed on an identification parade and that
he was identified by confrontation only.
2.2 The author was tried in the Home Circuit Court, Kingston, from 15 to 17
November 1983. From the trial transcript, it transpires that the police
officers who had arrested the author at the Central Police Station had not
themselves identified the author at the scene of the crime but merely relied
on the reports filed by two other police officers. One of these officers
testified during the trial that he had not been able to see the face of the
accused for more than a "split second".
2.3 Upon conclusion of the trial, the author was found guilty as charged and
sentenced to death. He appealed to the Court of Appeal of Jamaica, which
heard and dismissed the appeal on 14 January 1986. The author has since
manifested his desire to file a petition for special leave to appeal with
the Judicial Committee of the Privy Council, but has been unable to do so,
as the Court of Appeal did not issue a reasoned judgement.
2.4 On 7 November 1988, a warrant for the execution of the author on 15
November 1988 was issued. On 14 November 1988, he was given a stay of
execution, pending the outcome of representations to the Judicial Committee
of the Privy Council on his behalf.
The complaint
3. The author claims to be a victim of a violation of article 7 of the
Covenant, on account of the length of time spent on death row, and of
article 14, because of the Court of Appeal's failure to issue a reasoned
judgement.
The State party's information and observations
4.1 In submissions dated 3 March and 7 July 1989 and 21 February 1990, the
State party argues that the communication is inadmissible on the ground of
non-exhaustion of domestic remedies, because the author had not yet applied
to the Judicial Committee of the Privy Council for special leave to appeal.
4.2 As to the author's contention that he was prevented from filing a
petition for special leave to appeal because of the absence of a reasoned
judgement of the Court of Appeal, the State party argues that this statement
has no basis in law or practice. It observes in this context that the
Judicial Committee (General Appellate Jurisdiction) Rules Order 1982 does
not stipulate that a written judgement of the Court of Appeal is a necessary
prerequisite for a petition for special leave to appeal and that, in
practice, the Judicial Committee has heard several petitions in the absence
of a written judgement.
4.3 The State party further submits that the Court of Appeal did not issue a
reasoned judgement in the author's case since it was not then the practice
of the Court to do so in appeals considered to be unmeritorious.
The Committee's decision on admissibility
5.1 During its forty-fourth session in March 1992, the Committee considered
the admissibility of the communication. It noted that the Court of Appeal of
Jamaica had still not issued a written judgement in the author's case,
although the appeal had been dismissed more than six years earlier. It
concluded that in the circumstances, the application of domestic remedies
had been unreasonably prolonged within the meaning of article 5, paragraph 2
(b), of the Optional Protocol.
5.2 As to the author's allegation of a violation of article 7 of the
Covenant, the Committee considered that the author had failed to
substantiate this claim, for purposes of admissibility, and concluded that
Mr. Hamilton had no claim within the meaning of article 2 of the Optional
Protocol.
5.3 Inasmuch as the author's claims related to the evaluation of the
evidence against him by the Home Circuit Court in Kingston, the Committee,
by reference to its established jurisprudence, [FN1] considered that this
part of the communication was inadmissible under article 3 of the Optional
Protocol.
-------------------------------------------------------------------------------------------------------------------------------[FN2]
See, for example, Official Records of the General Assembly, Forty-sixth
Session, Supplement No. 40 (A/46/40), annex XII.E, communication No.
304/1988, (D. S. v. Jamaica) declared inadmissible on 11 April 1991,
paragraph 5.2.
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5.4 Finally, the Committee considered that the Court of Appeal's failure to
issue a written judgement could raise issues under article 14, paragraphs 3
(c) and 5, which should be considered on the merits; accordingly, on 20
March 1992, it declared the communication admissible in respect of article
14, paragraphs 3 (c) and 5, of the Covenant.
The State party's request for a review of admissibility and counsel's
comments
6.1 In a submission dated 11 February 1993, the State party reiterates that
it considers the communication inadmissible on the ground of non-exhaustion
of domestic remedies. It observes that Mr. Hamilton's counsel is presently
in the process of pursuing two domestic remedies available to his client:
firstly, a criminal appeal to the Judicial Committee of the Privy Council
and, secondly, an application to the Governor-General under section 29 (1)
of the Judicature (Appellate Jurisdiction) Act to have the author's case
remitted to the Court of Appeal for a re-hearing. The State party submits
that it is "clear that these are domestic remedies available to the author,
which must be exhausted before the Committee is competent to examine the
case".
6.2 The State party further argues that the author may still seek redress
under section 25 of the Constitution for any alleged violation of his
constitutional rights; in this context, it is noted that the right in
article 14, paragraph 3 (c), of the Covenant is similar to the right
protected under section 20, paragraph 1, of the Jamaican Constitution.
7.1 In his comments, counsel complains that the State party has failed to
address the merits of the claims under article 14, paragraphs 3 (c) and 5.
He observes that the Government of Jamaica has not made available legal aid
to Mr. Hamilton to pursue his application to the Governor-General pursuant
to section 29 (1) of the Judicature (Appellate Jurisdiction) Act; this
remedy is not therefore available to him in practice. Similarly, no legal
aid has been made available under section 25 of the Jamaican Constitution
and, accordingly, this remedy is not available to Mr. Hamilton in practice
either.
7.2 Counsel notes that the Court of Appeal of Jamaica heard Mr. Hamilton's
application under section 29 (1) between 29 September and 1 October 1993,
when judgement was reserved. To date, no judgement has been given. Counsel
contends, however, that the issues that were considered by the Court of
Appeal of Jamaica under section 29 (1) were entirely different from those
submitted to the Human Rights Committee for consideration.
7.3 Finally, counsel observes that a Notice of Intention to apply for
special leave to appeal (in forma pauperis) to the Judicial Committee could
be filed without necessarily attaching a copy of the reasoned judgement of
the Court of Appeal. He adds that in practice, however, the case could never
be argued before the Judicial Committee without such reasons being made
available to it. In this context, he recalls that an appeal to the Judicial
Committee is against the "judgement" of the Court of Appeal.
Review of admissibility and considerations of merits
8.1 The Committee has taken note of the parties' arguments made in respect
of admissibility. It takes the opportunity to expand on its admissibility
findings.
8.2 Concerning a re-hearing of the author's case under section 29 (1) of the
Judicature (Appellate Jurisdiction) Act, the Committee notes that although
the author was not assigned legal aid for the purpose, he secured legal
representation for it. This is evidenced by the State party's own submission
of 11 February 1993 and conceded by counsel, who points to the fact that the
Court of Appeal indeed did re-hear the case between 29 September and 1
October 1993. However, as counsel indicates, the issues before the Court of
Appeal differ from those before the Committee, as the re-hearing concerned
the re-evaluation of evidence in the case, an aspect in respect of which the
communication before the Committee was declared inadmissible under article 3
of the Optional Protocol. An application pursuant to section 29 (1) of the
Judicature (Appellate Jurisdiction) Act therefore is not a remedy the author
is required to exhaust for purposes of the Optional Protocol, in this
particular communication.
8.3 Similar considerations apply to the possibility of a petition for
special leave to appeal to the Judicial Committee of the Privy Council. On
the basis of the information before the Committee, it would appear that the
author's case falls into the category of "fleeting glance identification",
for which the Judicial Committee established precise rules and guidelines in
a judgement of July 1989. FNb However, even if it could be argued that the
directions of the Jamaican courts on the "fleeting glance" identification of
Mr. Hamilton did not meet the guidelines established by the Judicial
Committee, it is not this issue which is before the Human Rights Committee;
furthermore, the absence of a reasoned judgement of the Court of Appeal is
likely to prevent the author from successfully arguing his petition before
the Judicial Committee although the availability of the judgement is not a
precondition for lodging an application for special leave to appeal. The
Committee is aware that the Judicial Committee has indicated that it can
review an appeal even in the absence of a written judgement. But, as the
Judicial Committee itself has noted in the recent judgement of Earl Pratt
and Ivan Morgan v. Attorney-General, FNc it is in practice "necessary to
have the reasons of the Court of Appeal at the hearing of the application
for special leave to appeal, as without them it is not usually possible to
identify the point of law or serious miscarriage of justice of which the
appellant complains". Under the Committee's jurisprudence, a remedy must be
effective, as well as formally available. An appeal on the merits would thus
necessarily require a written judgement. Accordingly, the Committee finds
that it is unnecessary, in order to exhaust local remedies, to petition the
Judicial Committee for special leave to appeal in the absence of a reasoned
written judgement.
-------------------------------------------------------------------------------------------------------------------------------[FN2]
Oliver Whylie et al. v. the Attorney-General of Jamaica.
[FN3] Judicial Committee of the Privy Council, judgement of 2 November 1993,
p. 8.
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8.4 As to the possibility of filing a constitutional motion pursuant to
section 25 of the Jamaican Constitution, it is uncontested that no legal aid
is available for the purpose. As the author would have to rely on the
provision of legal aid, the Committee considers that in the absence of legal
aid, a constitutional motion does not, in the circumstances of the case,
constitute an available and effective remedy within the meaning of article
5, paragraph 2 (b), of the Optional Protocol. Accordingly, the Committee has
no reason to review its decision of admissibility of 20 March 1992.
9.1 It remains for the Committee to decide whether the failure of the
Jamaican Court of Appeal to issue a reasoned written judgement violated the
author's rights under article 14, paragraphs 3 (c) and 5. Article 14,
paragraph 5, guarantees the right of convicted persons to have the
conviction and sentence reviewed by a "higher tribunal according to law".
The Committee, having noted that the failure to issue a reasoned written
judgement has effectively prevented the availability of a further remedy,
also finds that the author's right, under article 14, paragraphs 3 (c) and
5, to be tried without undue delay and to have his sentence reviewed by a
higher tribunal according to law, has been violated.
9.2 The Committee is of the opinion that the imposition of a sentence of
death upon conclusion of judicial proceedings in which the provisions of the
Covenant have not been respected constitutes, if no further appeal against
the sentence is available, a violation of article 6 of the Covenant. As the
Committee observed in its general comment 6(16), the provision that a
sentence of death may only be imposed in accordance with the law and not
contrary to the provisions of the Covenant implies that "the procedural
guarantees therein prescribed must be observed, including the right to a
fair hearing by an independent tribunal, the presumption of innocence, the
minimum guarantees for the defence and the right to review by a higher
tribunal". [FN4] In the instant case, since the final sentence of death was
passed and an important requirement under article 14 was not met, it must be
concluded that the right protected under article 6 of the Covenant was
violated.
-------------------------------------------------------------------------------------------------------------------------------[FN4]
Official Records of the General Assembly, Thirty-seventh Session, Supplement
No. 40 (A/37/40), annex V, general comment 6(16), para. 7).
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9.3 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 disclose a violation of
article 14, paragraphs 3 (c) and 5, and consequently of article 6 of the
Covenant.
10. In capital punishment cases, the obligation of States parties to observe
rigorously all the guarantees for a fair trial set out in article 14 of the
Covenant admits of no exception. The Committee is of the view that Mr.
Lenford Hamilton, victim of a violation of article 14, paragraphs 3 (c) and
5, and consequently of article 6, is entitled, pursuant to article 2,
paragraph 3 (a), of the Covenant, to an effective remedy entailing his
release; the State party is under an obligation to ensure that similar
violations do not occur in the future.
11. The Committee would wish to receive information, within 90 days, on any
relevant measures taken by the State party in respect of the Committee's
views. |
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