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1. The authors of the
communication are Lynden Champagnie, Delroy Palmer and Oswald Chisholm,
three Jamaican citizens currently awaiting execution at St. Catherine
District Prison, Jamaica. They claim to be the victims of violations by
Jamaica of articles 2, paragraphs 2 and 3(a) and (b), 6, 7, 10 and 14,
paragraph 5, of the International Covenant on Civil and Political Rights.
They are represented by counsel. An earlier communication submitted to the
Human Rights Committee by the authors, communication No. 257/1987, was
declared inadmissible on 26 July 1988 because of non-exhaustion of domestic
remedies, since they had not petitioned the Judicial Committee of the Privy
Council for special leave to appeal. They re-submitted their communication,
arguing that in their case a petition to the Judicial Committee of the Privy
Council would not be an effective remedy within the meaning of article 5,
paragraph 2(b), of the Optional Protocol.
THE FACTS AS SUBMITTED BY THE AUTHORS:
2.1 On 8 March 1979, the authors, together with one R.W. and one A.G., were
convicted in the Home Circuit Court of Kingston of the murder of one C.M.
The authors were sentenced to death; the two other co-accused were sentenced
to life imprisonment, as they were minors when the crime was committed.
2.2 The case for the prosecution was that, on 9 July 1977 at 3 a.m., C.M.
and his common law wife H.P. were woken up by noise outside their bedroom
window. When C.M. enquired who was disturbing them, someone answered that it
was the police. Immediately thereafter H.P. heard a gunshot and saw C.M.
falling from the bed; she then hid under the bed. The door to the house was
kicked open and five men entered the house. After they discovered H.P., the
men asked her for money. She was then taken outside by two of the men who
raped her. C.M. died from the gunshot wounds.
2.3 The authors and R.W. were identified by H.P. at separate identification
parades. Supplementary evidence against them included self-incriminating
statements, which they made to the police after their arrest. Their defence
was mainly based on alleged irregularities during the identification parade
and the involuntariness of their statements.
2.4 The authors appealed their convictions; on 10 June 1981, the Jamaican
Court of Appeal, treating the applications for leave to appeal as the
hearing of the appeal, dismissed the appeal in the cases of the authors and
R.W., whereas A.G. was acquitted.
2.5 The Court of Appeal did not issue a written judgment in the case until
17 July 1986, over five years later. The judges admitted that "due to the
most unpardonable oversight, the records got filed away and the reasons for
judgment were never prepared". Furthermore, they stated that "we cannot
after this lapse of time rely upon our memory of any impression formed
during the hearing of the appeals and we will therefore confine our reasons
to the points which clearly appear from our notes made during the hearing".
2.6 By letter dated 14 June 1988, concerning the authors' previous
communication, a London law firm which had agreed to represent the authors
before the Judicial Committee of the Privy Council, requested the Human
Rights Committee to defer consideration of the communication, pending the
outcome of the authors' petition for special leave to appeal. However, on 16
July 1990, leading counsel for the case opined that although the summing up
of the case by the trial judge was highly questionable, and the conduct of
the appeal by the Court of Appeal deplorable, there was little point in
appealing to the Judicial Committee of the Privy Council, in the light of
the narrow interpretation of its jurisdiction by this body. He pointed out
that it was difficult to give full advice on the merits of an application
for leave to appeal against the decision of the Court of Appeal, as the
latter's written judgment had not yet been made available at that time. It
appears that, after having received the written judgment in October 1990,
counsel confirmed that there was no merit in seeking leave to appeal to the
Judicial Committee for the following reason:
(a) Although there were potential grounds of appeal to the Court of Appeal
in each of the three cases, many of those grounds had not been raised by
counsel in Jamaica. The Privy Council would be most unwilling to allow new
grounds to be argued before it for the first time;
(b) Because of the inadequacy of the Court of Appeal's judgment, the only
proper way in which the case could be argued in the Privy Council, even
assuming that it would allow new grounds to be argued, was by reference to
the 2,000 page transcript of the trial. The Privy Council was unlikely to
allow such a course to be adopted;
(c) The Privy Council would most likely be of the opinion that the proper
way of redress for the authors was by way of constitutional motion to
challenge the delay in the delivery and the inadequacy of the judgment.
2.7 In the light of the above, counsel submits that the only form of redress
currently open to the authors is a constitutional motion to the Supreme
(Constitutional) Court of Jamaica, for which the Poor Prisoners' Defence Act
does not provide legal aid. Counsel further submits that, as it is virtually
impossible to secure the services of qualified lawyers in Jamaica on a pro
bono basis for the purpose, a constitutional motion cannot be deemed to be
an available remedy.
THE COMPLAINT:
3.1 It is submitted that the authors have been unable to petition the
Judicial Committee of the Privy Council for special leave to appeal because
of the lack of a reasoned judgment of the Court of Appeal, in violation of
article 2, paragraphs 2 and 3(a) and (b), juncto article 14, paragraph 5, of
the Covenant.
3.2 Counsel further submits that an execution of the authors at this point
in time, after more than 15 years on death row, would amount to an arbitrary
deprivation of life, in violation of article 6 of the Covenant. Similarly,
the fact that the authors were kept on death row for sixyears (from 1981 to
1987, when they initially submitted their communication to the Committee)
during which there was no legal impediment to their execution, constitutes
cruel, inhuman and degrading treatment within the meaning of article 7 of
the Covenant.
3.3 Finally, counsel submits that the conditions of detention on death row
amount to a violation of article 10 of the Covenant. In support of his
contention, he submits a copy of a report on conditions of detention in
Jamaican penitentiaries, prepared by a non-governmental organization.
THE STATE PARTY'S INFORMATION AND OBSERVATIONS ON THE QUESTION OF THE
ADMISSIBILITY:
4.1 In its submission under rule 91, the State party argues that the
communication is inadmissible under article 5, paragraph 2(b), of the
Optional Protocol, because the authors have failed to exhaust domestic
remedies. It notes that the authors may still appeal to the Judicial
Committee of the Privy Council by way of petition for special leave to
appeal, and that legal aid would be available to them under the Poor
Prisoners' Defence Act for that purpose. The State party adds that the
authors may still apply for constitutional redress; in this context, it
notes that the rights invoked by the authors are co-terminous with the
provisions of chapter III of the Jamaican Constitution, which guarantees and
protects fundamental rights and freedoms to all persons in Jamaica. Pursuant
to section 25 of the Constitution, an individual claiming that any of these
provisions has been, is being or is likely to be contravened in relation to
him, may apply to the Supreme (Constitutional) Court for redress. A right of
appeal lies to the Court of Appeal and subsequently to the Privy Council.
4.2 With respect to the question of availability of legal aid, the State
party submits that the Poor Prisoners' Defence Act does not make provision
for legal aid in respect of constitutional motions, and that there is no
obligation for States parties to the Covenant to provide legal aid in
respect of matters other than criminal matters. It is submitted that nothing
in the Optional Protocol or in customary international law would support the
contention that a person is relieved of the obligation to exhaust local
remedies because of his indigence.
THE COMMITTEE'S ADMISSIBILITY DECISION:
5.1 At its 47th session, the Committee considered the admissibility of the
communication. In respect of the State party's contention that the
communication was inadmissible because of non-exhaustion of domestic
remedies, the Committee recalled its constant jurisprudence that for
purposes of article 5, paragraph 2(b), of the Optional Protocol, domestic
remedies must be both effective and available, and that an element of
timeliness both in the pursuit and in the adjudication of such remedies must
be observed. With respect to the authors' possibility to petition the
Judicial Committee of the Privy Council for special leave to appeal, the
Committee noted counsel's advice that such a petition would have little
prospect of success. Moreover, the Committee noted that, on 11 July 1988,
the Judicial Committee of the PrivyCouncil decided in another case FN1 that
it had no competence to hear an application relating to delay in judicial
procedure. In the circumstances of the case before it, where the sole issue
raised by the authors under article 14 was one of delay, the Committee
considered that the petition for special leave to appeal to the Privy
Council could not be considered an effective remedy within the meaning of
article 5, paragraph 2(b), of the Optional Protocol.
-------------------------------------------------------------------------------------------------------------------------------[FN1]The
case of Howard Martin was subsequently submitted to the Committee as
communication No. 317/1988. Views adopted on 24 March 1993.
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5.2 With respect to the authors' possibility of filing a constitutional
motion, the Committee considered that, in the absence of legal aid, a
constitutional motion did not constitute an available remedy in the case. In
the light of the above, the Committee found that it was not precluded by
article 5, paragraph 2(b), of the Optional Protocol, from considering the
communication.
5.3 The Committee considered, however, that the authors had failed to
substantiate, for purposes of admissibility, their claim under article 7.
Similarly, the Committee considered that the authors, by merely referring to
a report outlining the conditions of detention in Jamaican prisons, had
failed to substantiate, for purposes of admissibility, the allegation that
they were the victims of a violation of article 10 of the Covenant. In this
respect, the Committee found that the authors had no claim within the
meaning of article 2 of the Optional Protocol.
5.4 On 18 March 1993, the Committee declared the communication admissible in
so far as it appeared to raise issues under article 14, paragraphs 3(c) and
5, juncto article 6 of the Covenant.
EXAMINATION OF THE MERITS:
6. The State party did not reply to the Committee's request under article 4,
paragraph 2, of the Optional Protocol, to submit to it written explanations
or statements clarifying the matter and the remedy, if any, that may have
been taken in the case.
7.1 The Committee has considered the communication in light of all the
information made available to it by the parties, as required under article
5, paragraph 1, of the Optional Protocol. The Committee notes with concern
that the State party has not addressed the substance of the matter under
consideration. Article 4, paragraph 2, of the Optional Protocol enjoins the
State party to investigate, in good faith and within the imparted deadlines,
all the allegations of violations of the Covenant made against it and
against its judicial authorities, and to make available to the Committee all
the information at its disposal.
7.2 The question before the Committee is whether the delay in the issuing
and the inadequacy of the written judgment of the Court of Appeal of Jamaica
deprived the authors of their right, under article 14, paragraph 3(c), to be
tried without undue delay, and of their right, under article 14, paragraph
5, to have conviction and sentence reviewed by a higher tribunal according
to law. The Committee recalls that article 14, paragraph 3(c), and article
14,paragraph 5, must be read together, so that the right to review of
conviction and sentence must be made available without delay. [FN2] In this
connection, the Committee refers to its earlier jurisprudence [FN3] and
reaffirms that under article 14, paragraph 5, a convicted person is entitled
to have, within reasonable time, access to written judgments, 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.
-------------------------------------------------------------------------------------------------------------------------------[FN2]
See the Committee's Views concerning communications Nos. 210/1986 and
225/1987 ( Earl Pratt and Ivan Morgan v. Jamaica ), adopted on 6 April 1989,
paragraphs 13.3 to 13.5.
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[FN3] Communications Nos. 230/1987 ( Raphael Henry v. Jamaica ) and 283/1988
( Aston Little v. Jamaica ), Views adopted on 1 November 1991. See also
communication No. 320/1988 ( Victor Francis v. Jamaica ), Views adopted on
24 March 1993.
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7.3 As regards the case before it, the Committee notes that the Court of
Appeal dismissed the authors' appeal on 10 June 1981, but did not issue a
written judgment until 17 July 1986, i.e. over five years later.
Furthermore, it appears from the information before the Committee, which has
remained uncontested, that it took another four years before the written
judgment was made available to leading counsel in London, who was only then
able to give his opinion on the merits of a petition for special leave to
appeal to the Judicial Committee of the Privy Council. The Committee has
also noted that, because of the considerable lapse of time that elapsed
between the hearing of the appeal and delivery of the reasons for judgment,
the Court of Appeal was unable to rely on its memory of the hearing of the
appeal and had to confine its reasons to such notes as were made during the
hearing of the appeal. In the circumstances, the Committee finds that it
cannot be said that the authors benefitted from a proper review of their
conviction and sentence, nor from timely access to the reasons for judgment,
which would have enabled them to effectively exercise their right of appeal
at all instances. The Committee therefore concludes that the rights of the
authors under article 14, paragraphs 3(c) and 5, of the Covenant, have been
violated.
7.4 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 of conviction and
sentence 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]
See CCPR/C/21/Rev.1, page 7, paragraph 7.
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8. 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
International Covenant on Civil and Political Rights.
9. 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 Messrs. Champagnie,
Palmer and Chisholm with an effective right to appeal without undue delay in
accordance with article 14, paragraphs 3(c) and 5, of the Covenant, means
that they did not receive a fair trial within the meaning of the Covenant.
Consequently, they are 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 their release. The State party is
under an obligation to ensure that similar violations do not occur in the
future.
10. 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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