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1. The author of the
communication is Anthony Currie, a Jamaican citizen awaiting execution at
St. Catherine District Prison, Jamaica. He claims to be the victim of a
violation by Jamaica of article 14, paragraphs 1, 3 (c) and 5, juncto
article 2, paragraph 3, of the International Covenant on Civil and Political
Rights. He is represented by counsel.
2.1 The author states that he was charged with the murder, on 18 April 1978,
of Ezekiel Segree. Prior to the murder, the author and the deceased had been
engaged in an argument. The author alleges that the deceased pulled a knife
and injured him. During the trial medical evidence was not called for by the
author's lawyer in order to determine whether the author's scar could have
been the result of a wound inflicted at the time of the murder; the
prosecution witnesses testified that the deceased had not been the
aggressor.
2.2 On 8 December 1978, the author was sentenced to death. The author
appealed the judgement on the ground that the judge had misdirected the jury
on the issue of self-defence. The Jamaican Court of Appeal dismissed his
appeal on 11 October 1980. The author subsequently filed a petition for
special leave to appeal to the Judicial Committee of the Privy Council. On
20 February 1987, his petition was dismissed in the absence of a written
judgement of the Jamaican Court of Appeal. Counsel had invited the Judicial
Committee to allow the petition on the basis that the failure of the Court
of Appeal to issue a written judgement in a capital case was such a serious
violation of the principles of natural justice that leave to appeal should
be granted, or to remit the case to Jamaica with a direction under section
10 of the Judicial Committee Act 1844 that the Court of Appeal be required
to provide written reasons.
2.3 Section 10 of the 1844 Act (as revised on 31 March 1978) stipulates:
"It shall be lawful for the said Judicial Committee to make an order or
orders on any court in any colony of foreign settlement, or foreign dominion
of the crown, requiring the judge or judges of such court to transmit to the
clerk of the Privy Council a copy of the notes of evidence in any case tried
before such court, and of the reasons given by the judge or judges for the
judgement pronounced in any case brought by appeal or by writ of error
before the said Judicial Committee."
2.4 The Judicial Committee did not adopt either of the proposed courses and
instead dismissed the application for leave to appeal.
The complaint
3.1 The author claims that he has been denied the right to have his
conviction and sentence reviewed by a higher tribunal because of the Court
of Appeal's failure to issue a written judgement and the subsequent failure
of the Judicial Committee to exercise its powers under section 10 of the
1844 Act. He states that he failed to win special leave to appeal to the
Judicial Committee because, in the absence of written judgement, he was
unable to explain the grounds on which he was seeking leave to appeal and to
include copies of the Appeal Court's judgement.
3.2 The author further contends that the failure of the Court of Appeal to
issue a written judgement, despite repeated requests on his behalf, violates
his right to be tried without undue delay, as in the absence of a written
judgement he is unable to pursue effectively his right of appeal to the
Judicial Committee of the Privy Council.
3.3 The author further submits that by failing to provide him with an
accessible legal procedure for the enforcement of his constitutional rights,
the State party denied him the right of access to court to seek redress for
the violations of his fundamental rights. The author argues that this
failure constitutes a violation of article 14, paragraph 1, juncto article
2, paragraph 3, of the Covenant.
3.4 In support of his allegations the author adduces relevant judicial
precedents from the case law of Commonwealth countries, the United States of
America, the European Court of Human Rights and the Human Rights Committee.
[FN1]
-------------------------------------------------------------------------------------------------------------------------------[FN1]
The author refers, inter alia, to the Committee's views in Earl Pratt and
Ivan Morgan v. Jamaica, communications Nos. 210/1986 and 225/1987, adopted
on 6 April 1989 (see Official Records of the General Assembly, Forty-fourth
Session, Supplement No. 40 (A/44/40), annex X.F).
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The State party's observations and the author's clarifications
4.1 By submission of 11 January 1990, the State party argues that the
communication is inadmissible on the ground of failure to exhaust all
domestic remedies.
4.2 The State party submits that the author's right to a fair trial without
undue delay and the right to access to court for the determination of
criminal charges against him are guaranteed in section 20 (1) of the
Jamaican Constitution. Under section 25, any person who alleges that a
fundamental right guaranteed in the Constitution has been, is being or is
likely to be contravened in relation to him may apply to the Supreme
(Constitutional) Court for redress. The State party states that the Supreme
Court may make such orders, issue such writs and give such directions as it
may consider appropriate for the purpose of enforcing or securing the
enforcement of any of the rights to which the person is entitled.
4.3 The State party argues that, since the author has taken no steps to
secure his constitutional remedies, he has therefore not exhausted domestic
remedies as required by article 5, paragraph 2 (b), of the Optional
Protocol.
5.1 In his comments on the State party's observations, the author explains
why, in his opinion, his communication meets the requirements of article 5,
paragraph 2 (b), of the Optional Protocol. While conceding that he has not
sought to exercise his right under section 25 (1) of the Jamaican
Constitution to seek redress for the alleged breach of his constitutional
rights before the Supreme Court, he argues that, in practical terms, because
of lack of means, this right is not available to him and is therefore not an
effective domestic remedy. He submits that he cannot be required to exhaust
a remedy that is neither available nor effective.
5.2 The author argues that the State party has rendered his constitutional
rights meaningless and nugatory by failing to provide legal aid for
constitutional motions. He contends that without the assistance of a lawyer,
he is unable to pursue the complex legal procedures that a constitutional
motion entails. He states that he has been unsuccessful in finding an
attorney willing to represent him on a pro bono basis. He contends that he
is therefore being denied effective access to court for the determination of
his constitutional rights.
The Committee's decision on admissibility
6. At its forty-fourth 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 the
constitutional remedies said to be available to him. In this context, the
Committee recalled its constant jurisprudence that domestic remedies within
the meaning of the Optional Protocol must be both available and effective;
it considered that, in the absence of legal aid for purposes of filing a
constitutional motion, the recourse to the Supreme Court under section 25 of
the Jamaica Constitution did not constitute a remedy which is both available
and effective within the meaning of article 5, paragraph 2 (b), of the
Optional Protocol.
7. On 20 March 1992, the Committee therefore declared the communication
admissible in so far as it might raise issues under article 14, paragraphs
1, 3 (c) and 5, of the Covenant.
Review of admissibility
8. By submission of 16 February 1993, the State party maintains that the
communication is inadmissible for failure to exhaust domestic remedies. It
challenges the Committee's finding that a constitutional motion does not
provide an adequate and effective remedy in the absence of legal aid. In
this context, the State party submits that the Covenant does not require
States parties to provide legal aid in all cases, but only, under article
14, paragraph 3 (d), to persons charged with a criminal offence where the
interests of justice so require.
9. In his comments, dated 21 June 1993, on the State party's submission, the
author refers to his earlier comments concerning the admissibility of the
communication.
10. The Committee has taken note of the arguments submitted to it by the
State party and the author 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 circumstances of the instant case, constitute an
available remedy within the meaning of article 5, paragraph 2 (b), of the
Optional Protocol. There is therefore no reason to revise the Committee's
earlier decision on admissibility of 20 March 1992.
Examination of the merits
11. As to the merits of the communication, the State party argues that the
author's allegations do not reveal a violation of the Covenant. With regard
to the author's allegation that article 14, paragraph 5, has been violated,
the State party submits that the author has had his case reviewed by the
Court of Appeal as well as by the Privy Council.
12.1 With regard to his claim under article 14, paragraphs 3 (c) and 5, of
the Covenant, that he has been denied the right to have his conviction and
sentence reviewed by a higher tribunal without undue delay, the author
refers to the Committee's prior jurisprudence, [FN2] where the Committee
found violations of article 14, paragraphs 3 (c) and 5, since the failure of
the court to issue a written judgement denied the complainants the
possibility of an effective appeal without undue delay. The author points
out that it has been 15 years since he was originally charged with murder
and nearly 13 years since the Court of Appeal orally dismissed his appeal
and that no written judgement has been issued as yet. He challenges the
State party's statement that his case had been examined by the Privy Council
and states that the Privy Council merely denied him leave to appeal because
he was unable to meet the requirements of the Council's rules of procedure,
namely, to explain the grounds on which he was seeking special leave to
appeal and to include copies of the Appeal Court's judgement with his
petition.
-------------------------------------------------------------------------------------------------------------------------------[FN2]
Official Records of the General Assembly, Forty-eighth Session, Supplement
No. 40 (A/48/40), annex XII.K, communication No. 320/1988 (Victor Francis v.
Jamaica), views adopted on 24 March 1993; ibid., Forty-seventh Session,
Supplement No. 40 (A/47/40), annex IX.J, communication No. 283/1988 (Aston
Little v. Jamaica), views adopted on 1 November 1991; and ibid., annex IX.B,
communication No. 230/1987 (Raphael Henry v. Jamaica), views adopted on 1
November 1991.
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12.2 With regard to his claim under article 14, paragraph 1, of the
Covenant, that he has been denied the right of access to court to seek
constitutional redress for the violation of his human rights, the author
submits that the high legal costs involved in seeking constitutional redress
are well beyond his means and that no legal aid is provided for
constitutional motions. He moreover claims that the complicated nature of
the system of constitutional redress makes it inaccessible to him without
legal assistance. He argues that although the Covenant does not oblige
States parties to provide legal aid in respect of civil actions, States
parties are under an obligation to give effect to the rights and remedies
set out in the Covenant. The author argues that the absence of legal aid for
constitutional motions and the absence of a simple and accessible procedure
for constitutional redress deny him effective access to the constitutional
court, so that he cannot enjoy his right under article 14, paragraph 1, to a
fair and public hearing for the determination of his rights and obligations.
13.1 The Committee has considered the communication in the light of all
information made available to it by the parties, as required under article
5, paragraph 1, of the Optional Protocol.
13.2 The author has claimed that the absence of legal aid for the purpose of
filing a constitutional motion itself constitutes a violation of the
Covenant. The Committee notes that the Covenant does not contain an express
obligation as such for a State to provide legal aid for individuals in all
cases but only, in accordance with article 14, paragraph 3 (d), in the
determination of a criminal charge where the interests of justice so
require.
13.3 The Committee is aware that the role of the Constitutional Court is not
to determine the criminal charge itself, but to ensure that applicants
receive a fair trial in all cases, whether criminal or civil. The State
party has an obligation, under article 2, paragraph 3, of the Covenant, to
make the remedies in the Constitutional Court addressing violations of
fundamental rights available and effective.
13.4 The determination of rights in proceedings in the Constitutional Court
must conform with the requirements of a fair hearing in accordance with
article 14, paragraph 1. In this particular case, the Constitutional Court
would be called on to determine whether the author's conviction in a
criminal trial has violated the guarantees of a fair trial. In such cases,
the application of the requirement of a fair hearing in the Constitutional
Court should be consistent with the principles in paragraph 3 (d) of article
14. It follows that where a convicted person seeking constitutional review
of irregularities in a criminal trial has not sufficient means to meet the
costs of legal assistance in order to pursue his constitutional remedy and
where the interests of justice so require, legal assistance should be
provided by the State. In the present case the absence of legal aid has
denied to the author the opportunity to test the regularities of his
criminal trial in the Constitutional Court in a fair hearing, and is thus a
violation of article 14, paragraph 1, juncto article 2, paragraph 3.
13.5 The author also claims that the failure of the Court of Appeal to issue
a written judgement violates his right under article 14, paragraph 3 (c), to
be tried without undue delay, and his right under article 14, paragraph 5,
to have his conviction and sentence reviewed. The State party had not
provided any information to show that the Judicial Committee of the Privy
Council dismissed the author's petition for special leave to appeal on any
grounds other than the absence of a written judgement of the Court of
Appeal. In the circumstances, the Committee finds that the author has been
barred from making effective use of the remedy of petitioning the Judicial
Committee of the Privy Council for special leave to appeal. The Committee
recalls that article 14, paragraph 3 (c), and article 14, paragraph 5, are
to be read together, so that the right to review of conviction and sentence
must be made available without undue delay. [FN3] In this connection, the
Committee refers to its earlier jurisprudence b/ and reaffirms that under
article 14, paragraph 5, a convicted person is entitled to have, within
reasonable time, access to written judgements, duly reasoned, for all
instances of appeal in order to enjoy the effective exercise of the right to
have conviction and sentence reviewed by a higher tribunal according to law.
The Committee is of the opinion that the failure of the Court of Appeal to
issue a written judgement, 13 years after the dismissal of the appeal,
constitutes a violation of article 14, paragraphs 3 (c) and 5.
-------------------------------------------------------------------------------------------------------------------------------[FN3]
Ibid., Forty-fourth Session, Supplement No. 40 (A/44/40), annex X.F,
communications Nos. 210/1986 and 225/1987 (Earl Pratt and Ivan Morgan v.
Jamaica), views adopted on 6 April 1989, paras. 13.3 to 13.5.
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13.6 The Committee is of the opinion that the imposition of a sentence of
death upon conclusion of a trial in which the provisions of the Covenant
have not been respected constitutes, if no further appeal against the
sentence is possible, a violation of article 6 of the Covenant. As the
Committee noted in its general comment 6 (16), the provision that a sentence
of death may be imposed only 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 present case, since the final sentence of death was passed
without due respect for the requirements for a fair trial set out in article
14, paragraphs 3 (c) and 5, there has accordingly also been a violation of
article 6 of the Covenant.
-------------------------------------------------------------------------------------------------------------------------------[FN4]
Ibid., Thirty-seventh Session, Supplement No. 40 (A/37/40), annex V, general
comment 6 (16), para. 7.
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14. 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, paragraph 1, juncto article 2, paragraph 3, article 14,
paragraphs 3 (c) and 5, and consequently article 6 of the International
Covenant on Civil and Political Rights.
15. 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 failure to provide Mr. Currie an
effective right to appeal without undue delay in accordance with article 14,
paragraphs 3 (c) and 5, of the Covenant, means that he did not receive a
fair trial within the meaning of the Covenant. Consequently, he is entitled,
under article 2, paragraph 3 (a), of the Covenant, to an effective remedy.
The Committee is of the view that in the circumstances of the case, this
entails his release. The State party is under an obligation to ensure that
similar violations do not occur in the future.
16. The Committee would wish to receive information, within ninety days, on
any relevant measures taken by the State party in respect of the Committee's
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