The author of the communication (initial submission dated 15 September 1987 and subsequent correspondence) is Paul Kelly, a Jsmaican citizen awaiting execution at St. Catherine District Prison, Jamaica. He claims to be the victim of a violation by Jamaica of articles 71 9, paragraphs 3 and 4; 101 and 14, paragraphs 1 and 3 (a) to (e) and (g), of the International Covenant on Civil and Political Rights, He is represented by counsel. . Facts as hrtted bv the &&&L
The author was arrested and taken into custody on 20 August 1981. He was detained until 15 September 1981 without formal ch>rges being brought against him, Following a statement to the police given on 15 September 1951, he was charged with having murdered Owen Jamieson on 2 July 1981. He was tried with a co-defendant, Trevor Collins, in the Westmoreland Circuit Court between 9 and 15 February 1983. He and Mr. Collins were found guilty of murder and k Individual opinions submitted by Mr. Waleed Sadi and Mr. Bertil Wennergren, respectively, are appended. -241-
The evidence relied on during the trial was that on 1 July 1981 the author and Mr. Collins had sold a cow to Basil Miller and had given him a receipt for the sale. According to the prosecution, the cow had been stolen from Mr. Jamieson, who had visited Mr. Miller’s home on the afternoon of 1 July and had identified the cow as his property. The accused had then purportedly killed Mr. Jemieson in the belief that he had obtained the receipt from Mr. Miller implicating them in the theft of the COW.
During the trial, the prosecution adduced certain evidence against the author and his co-defendant, (a) blood-stained clothing that was found in a latrine at the house where the accused lived; (b) the presence of a motivet and (c) the oral evidence tendered by the sister of the author and the brother of Trevor Collins. In particular, the testimony of the author’s sister was- important as to the identification of the clothes found in the latrine. According to the prosecution, the author and Mr. Collins had fled the district after the murder. Mr. Collins’ brother testified that the accused had borrowed a suitcase from him in the early hours of the morning following the murder.
The author challenged the prosecution’s contention that his statement of 15 September 1981 had been a voluntary one. In an unsworn statement from the dock, he claimed to have been beaten by the police, who had tried to force bin to confess to the crime. He affirm6 that the police tried to have him sign a “blanko” confession, and that he withstood the beating6 and refused to sign any papers presented to him. He further maintains that he never made a statement to the police and that he knows nothing about the circumstances of Mr. Jamieson’s death. laint
The author allege6 a violation of articles 7 and 14, paragraph 3 (g), of the Covenant on the ground that he was threatened and beaten by the police, who tried to make him give and sign a confession, Although the police sought. to dismiss his version during the trial, the author contend6 that several factors support his claim: his “voluntary confession” was not obtained until nearly four weeks after his arrest; no independent witness was present at the time when he purportedly confessed and signed his statement; and there were numerous inconsistencies in the prosecution’s evidence relating to the manner in which his statement was obtained.
The author further note6 that 26 days passed between his arrest (20 August 1981) and the filing of formal charges against him (15 September 1981). During this time, he claims, he was not allowed to contact his family nor to consult with a lawyer, in spite of his requests to meet with one. After he was charged, another week elapsed before he was brought before a judge. During this period, his detention was under the sol6 -242- 3,3 According to the author. the State party violated article
Paragraph 3 (a), because he was not informed promptly and in detail of the nature of the charges against him. Upon his arrest, he was held for several days at the Cf3ntral lock-up at Kingston, pending “collection” by the 9sstmoreland police, and merely told that he was wanted in con.nection with a murder investigation. Further details were not forthcoming even after his transfer to Westmoreland. It was only on I. September 1981 that he was informed that he was charged with the murder of Owen Jamieson. 3,4 The author submits that article 14, paragraph 3 (b), was violated in his osss, since he was denied adequate time and facilities for the preparation of his defence, had no or little opportunity to communicate with counsel representing him at trial and on appeal, both before and during trial and appeal, and because he was unable to defend himself through legal assistance of his own choosing. lYn this context, he notes that he experienced considerable difficulty in obtaining legal representation. Counsel assigned to him during the trial did not meet with him until the opening day of the trial; moreover, this meeting lasted a mere 15 minutes, during which it was virtually impossible for counsel to prepare the author’s defence in any meaningful way. During the trial, he could not consult with the lawyers for more than a total of seven minutes, which means that preparation of the defence prior to and during the trial was restricted to 22 minutes. He points out that the lack of time for the preparation of the trial was extremely prejudicial to him, in that his lawyer could not prepare proper submissions on his behalf in relation to the admissibility of his “confession statement”, or prepare properly for the cross-examination of witnesses. As to the hearing of the appeal, the author contends that he never met with, or even instructed, his counsel, and that he was not present during the hearing of the appeal. 3,5 The author also alleges that article 14, paragraph 3 (d), was violated. In this connection, he notes that, as he is poor, he had to rely on legal aid lawyers for the judicial proceedings against him. While he concedes that this situation does not in itself reveal a breach of article 14, paragraph 3 (d), he submits that the inadequacy of the Jamaican legal aid system, which resulted in substantial delays in securing suitable legal representation, does mount to a breach of this provision, He further notes that as he did not have an opportunity to discuss his case with the lawyers assigned to his appeal, he could not possibly know that this lawyer intended to withdraw the appeal and thus could not object to his intentions, He adds that had he been apprised of the situation, he would have sought other counsel.
The author contends that he has been the victim of a violation of article 14, paragraph 3 (c), in that he was not tried without undue delay. Thus, almost 18 months elapsed between his arrest and the start of the trial. During the whole period, he was in police custody. As a result, he was Prevented from carrying out his own investigtitions, which might have assisted him in preparing his defence, given that court-appointed legal assistance was not immediately forthcoming. -243-
Finally, the author affirms that he is the victim of a violation of article 10 of the Covenant, since the treatment he is subjected to on death row is incompatible with the respect for the inherent dignity of the human person. In this context, he encloses a copy of a report about the conditions of detention on death row at St. Catherine Prison, prepared by a United States non-governmental organisation, which describes the deplorable living conditions prevailing on death row. More particularly, the author claims that these conditions put his health at considerable risk, adding that he receives insufficient food, of very low nutritional value, that he has no access whatsoever to recreational or sporting facilities and that he is locked in his cell virtually 24 hours a day. It is further submitted that the prison authorities do not provide for even basic hygienic facilities, adequate diet, medical or dental care, or any type of educational services. Taken together, these conditicns are said to constitute a breach of article 10 of the Covenant, The author refers to the Committee’s jurisprudence in this regard. 8/
In respect of the requirement of exhaustion of domestic remedies, the author maintains that although he has not petitioned the Judicial Committee of the Privy Council, he should be deemed to have complied with the requirements of article 5, paragraph 2 (b), of the Optional Protocol, He notes that pursuant to rule 4 of the Privy Council rules, a written judgement of the Court of Appeal is required if the Judicial Committee is to entertain an appeal.
The author further points out that he was unaware of the existence of the Note of Oral ,Judgement until almost three years after the dismissal of his appeal, and counsel adds that the trial transcript obtained in October 1989 is incomplete in material respects, including the summing-up of the judge, which further hampers efforts to prepare properly an appeal to the Privy Council. Subsidiarily, he argues that as almost eight years have already elapsea since -244- vartv’s observations
The State party contends that the communication is inadmissible because of the author’s failure to exhaust domestic remedies, since he retains the right, under section 110 of the Jemaican Constitution, to petition the Judicial Committee of the Privy Council for special leave to appeal. In this context, it points out that the rules of procedure of the Judicial Committee do not make a written judgement of the Court of Appeal a prerequisite for a petition for leave to appeal. While rule 4 provides that any petitioner for special leave to appeal must submit the judgement from which leave to appeal is sought I rule 1 defines “judgement” as “decree order, sentence or decision of any court, judge or judicial officer”. Thus, the State party argues, an order or a decision of the Court of Appeal, as distinct from a reasoned judgement , is a sufficient basis for a petition for special leave to appeal to the Judicial Committee. It adds that the Privy Council has heard petitions on the basis of the order or decision of the Court of Appeal dismissing the appeal.
With respect to the substance of the author’s allegations, the State party affirms that the facts as presented by the author “seek to raise issues of facts and evidence in the case which the Committee does not have the competence to evaluate”. The State party refers to the Committee’s decisions in communications 290/1988 and 36911989, in which it had been held that “while article 14 . . . guarantees the right to a fair trial, it is for the appellate courts of States parties to the Covenant to evaluate facts and evidence in a particular case”. 81 &sues and uroceedings before the Committee
On the basis of the information before it, the Human Rights Committee concluded that the conditions for declaring the communication admissible had been met, including the requirement of exhaustion of domestic remedies. In this respect, the Committee considered that a written judgement of the Court of Appeal of Jamaica was a prerequisite for a petition for special leave to appeal to the Judicial Committee of the Privy Council. It observed that in the Circumstances, author’s counsel was entitled to assume that any petition for special leave to appeal would inevitably fail because of the lack of a reasoned judgement from the Court of Appeal; it further recalled that domestic remedies need not be exhausted if they objectively have no prospect of success.
On 17 October 1989, the Human Rights Committee declared the communication admissible.
The Committee has noted the State party’s submissions of 8 May and
September 1990, made after the decision on admissibility, in which it reaffirms its position that the communication is inadmissible on the ground of -245-
As to the substance of the author’s allegations of violations of the Covenant, the Committee notes with concern that several requests for clarifications notwithstanding, the State party has confined itself to the observation that the facts as submitted seek to raise issues of facts and evidence that the Committee is not competent to evaluate: it has not addressed the author’s specific allegations under articles
9, 10 and 14, paragraph
of the Covenant. Article 4, paragraph 2, of the Optional Protocol enjoins a State party to investigate in good faith all the allegations of violations of the Covenant made against it and its judicial authorities, and to make available to the Committee all the information at its disposal. The summary dismissal of the author’s allegations, in general terms, does not meet the requirements of article 4, paragraph
In the circumstances, due weight must be given to the author Is allegations, to the extent that they have been sufficiently substantiated.
As to the claim under articles 7 and 14, paragraph 3 (g), of the Covenant, the Committee notes that the wording of article
paragraph 3 (g) - i.e., that no one shall “be compelled to testify against himself or to confess guilt” - must be understood in terms of the absence of any direct or indirect physical or psychological pressure from the investigating authorities on the accused , with a view to obtaining a confession of guilt. A f0rtlQr.i . it is unacceptable to treat an accused person in a manner contrary to aiticle 7 of the Covenant in Order to extract 8 confession. In the present case, the author’s claim has not been contested by the State party. It is, however, the Committee’s duty to ascertain whether the author has sufficiently substantiated his allegation, notwithstanding th8 State party’s failure to address it. After careful consideration of this material, and taking into account that the author’s contention was successfully challenged by the prosecution in court, the Committee is unable to conclude that the investigating officers forced the author to confess his guilt, in violation of articles 7 and 14, paragraph 3 (g).
In respect of the allegations pertaining to article 9, paragraphs 3 and 4, the State party has not contested that the author was detained for 6oms five weeks before be was brought before a judge or judicial officer entitled to decide on the lawfulness of his detention, The aelay of over one month violates the requirement, in article 9, paragraph 3, that anyone arrested ox 0 crimina! charge shall be brought “promptly” before a judge or other officer authorized by law to exercise judicial power, The Committee considers it to be an aggravating circumstance that, throughout this period, the author was denied access to legal representation and any contact with his family, As 8
Article 14, paragraph 3 (a), requires that any individual under criminal charges shall be informed promptly and in detail of the nature and the charges against him. The requirement of prompt information, however, only applies ouce the individual has been formally charged with a criminal offence. It does not apply to those remanded in custody pending the result of police investigations; the latter situation is covered by article 9, paragraph 2, of tlie Covenant. In the present case, the State party has not denied that the author was not apprised in any detail of the reasons for his arrest for several weeks following his apprehension and that he was not informed about the facts of the crime in connection with which he was detained or about the identity of the victim. The Committee concludes that the requirements of article 9, paragraph 2, were not met.
The right of an accused person to have adequate time and facilities for the preparation of his defence is an important element of the guarantee of a fair trial and an important aspect of the principle of equality of arms. In cases in which 8 capital sentence may be pronounced on the accused, it is axiomatic that sufficient time must be granted to the accused and his counsel to prepare the defence for the trial. The determination of whet constitute6 “adequate time” requires an assessment of the individual circumstsnces of each case. The author also contends that he was unable to obtain the attendance of witnesses. It is to be noted, however, that the material before the Cormnittee does not disclose whether either counsel or author complained to the trial judge that the time or facilities were inadequate. Furthermore, there is no indication that counsel decided not to cell witnesses in the exercise of his Professional judgement, or that, if a request to call witnesses was made, the trial judge disallowed it. The Committee therefore finds no violation of article 14, paragraph 3 (b) and (e) .
As to the issue of the author’s representation, in particular before the Court of Appeal, the Committee recalls that it is axiomatic that legal assistance should be made available to a convicted prisoner under sentence of death. This applies to all the stages of the judicial proceedings. In the author’s case, it is clear that legal assistance was assigned to him for the appeal. What is at issue is whether his counsel had a right to abandon the appeal Without prior consultation with the author. The author’s application -247-
With respect to the claim of “undue delay” in the proceedings against the author, two issues arise. The author contends that his right, under article
paragraph 3 (c), to be tried without “undue delay” was violated because almost 10 months elapsed between his arrest and the opening of the trial. While the Committee reaffirms, as it did in its general comment on article
that all stages of the judicial proceedings should take place without uddue delay, it cannot conclude that a lapse of a year and a half between the arrest and the start of the trial constituted “undue delay”, as there is no suggestion that pre-trial investigations could have been concluded earlier, or that the author complained in this respect to the authorities.
However, because of the absence of a written judgement of the Court of Appeal, the author has, for almost five years since the dismissal of his appeal in April 1986, been unable effectively to petition the Judicial Committee of the Privy Council, as shown in paragraph
above. This, in the Committee’s opinion, entails a violation of article
paragraph 3 (c), and article
The Committee reaffirms that in all cases, and in particular in capital cases, the accused is entitled to trial and appeal proceedings without undue delay, whatever the outcome of these judicial proceedings mty turn out to be. 81
Finally, inasmuch as the author’s claim of judicial bias is concerned, the Committee reiterates that it is generally for the appellate courts of States parties to the Covenant to evaluate the facts and evidence in a particular case. It is not in principle 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 Committee does not have sufficient evidence that the author’s trial suffered from such defects.
The Committee is of the opinion that the imposition of a sentence of death upon the cunclusion of a trial 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 noted in its general comment 6 (161, 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”. In the present ca6e, while a petition to the Judicial Committee is in theory still available, -240-
The Human Rights Committee, acting under article 5, paragraph 4, of the optional Protocol to the International Covenant on Civil and Political Rightfi, is of the view that the facts before the Committee disclose violations of articles
9, paragraphs 2 to 4, 10 and 14, paragraphs 3 (cl and (d) and 5 of the Covenant.
It is the view of the Committee that, in capital punishment ca6e6, State6 parties have an imperative duty to observe rigorously all the guarantees for a fair trial set out in article 14 of the Covenant. The Committee is of the view that Mr. Paul Kelly, victim of a violation of article
paragraphs 3 (c) and (cl) and 5 of the Covenant, is entitled to a remedy entailing his release.
The Committee would wish to receive information on any relevant meaeure6 taken by the State party in respect of the Committee’s views. French, Russian and Spanish, the English text being the original version. ] Q/ See final View6 in para.
Of communication No. 232/1987 (Daniel Pinto v. . . TrW 1, adopted on 20 July 1990. b/ [1967J 2 All ER, at 161. c/ (19821 3 All ER, at 469. Decisions of 8 November 1989. 290/1988 369/1%9 (E.S. v. Jam&&. pare.
( LW. v. JMlaica), pars, 8.2; Q/ See, for example, the final view6 of the Committee in communications Nos. 210/1986 and 225/1987, pare, 13.5, (Earl Pratt and Ivan Morgan), adopted on 6 April 1989. -249- I respectfully submit hereafter a separate opinion to the views adopted by the Human Rights Committee on 9 April 1991 with regard to communication No. 253/1907, submitted by Paul Kelly against Jsmaica. In the Committee’s view, the complainant was a victim of a violation of, fnter_alia, article
parayraph 3 (d), of the Covenant, in the sense that he was essentially deprived of effective representation, as called for in a said provision, because court-appointed counsel did not pursue Mr. Kelly’s right of appeal properly by deciding against pursuing it without prior consultation with his client. The central issue which the Committee had to determine is whether any error of judgement by the complainant’s legal counsel may be imputed to the State party, and therefore render it responsible for the alleged errors of counsel and accordingly serve as a ground to order the release of the victim from imprisonment and thus escape from the sentence imposed upon him by the Westmoreland Circuit Court for a murder committed on 2 July 1981. While sharing the view of the Committee that in proceedings for serious crimes, especially capital punishment cases, a fair trial for accused persons must provide them with effective legal counsel if the accused are unable to retain private,counsel, the responsibility of the State party in providing legal counsel may not go beyond the responsibility to act in good faith in assigning legal counsel to accused individuals. Any errors of judgement by court-appointed counsel cannot be attributed to the State party any more than errors by privately retained counsel can be. In an adversary system of litigation, it is unfortunate that innocent people go to the gallows for mistakes made by their lawyers, just as criminals may escape the gallows simply because their Pawyers are clever. This flaw runs deep into the adversary system of litigation applied by the majority of States parties to the Covenant. If court-appointed lawyers are held accountable to a higher degree of responsibility than their private counterparts, and thus the Stat0 p,arty is made accountable for any of their own errors of judgement, then, I ss afraid, the Committee is applying a double standard. I therefore beg to differ with the Committee’s view that the author should be released on account of the alleged error6 made by counsel assigned to him for the appeal. I would have been open to suggestions of other remedies to be granted to the complainant, including declaring a mistrisl or calling for snother judicial review of his case by the appellate court. to determine the matter of alleged gross errors made by his counsel, Waleed SAD1 -250- I concur in the views expressed in the Committee’s decision. However, in my opinion, the arguments in paragraph 5.6 should be expanded. Anyone deprived of his liberty by arrest or detention shall, according to article 9, paragraph 4 , of the Covenant, be entitled to take proceedings before a court. In addition, article 9, paragraph 3, ensures that anyone . arrested or detained Dn criminal 0&rg.09 shall be brought before a -l&g9 or other officer authorized by law to exercise judicial power. A similar right is contained in article 5 of the European Convention on Human Rights, which is applicable to the “lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence, or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done ” The author was arrested and taken into custody on 20 August 19811 he was detained .incommunicadQ, On I5 September 1981 he was charged with murder; only one week later was he brought before a judge. While article 9, paragraph 1, of the Covenant covers all forms of deprivation of liberty by arrest or detention, the scope of application of paragraph 3 is limited to arrests and detentions “on a criminal charge”. It would appear that the State party interprwts this provision in the sense that the obligation of the authorities to bring the detainee before a judge or judicial officer does not arise until a formal criminal charge has been served to him. It is, however, , abundantly clear from the traaaux that the formula “on a criminal charge” was meant to cover as broad a scope of application as the corresponding provision in the European Convention. All types of arrest and detention in the course of crime prevention are therefore covered by the provision, whether it is preventive detention, detention pending investigation or detention pending trial. The French version of the paragraph (“ddtenu du chef d’une infractin p&ale”) conveys this meaning better than the English version. It should be noted that the words “shall be brought promptly” reflect the original form of habeas corotda (“Habeas corpus NN ad sub-judiciendum”) and order the authorities to bring a detainee before a judge or judicial officer a6 soon as possible, independently of the latter’s express wishes in this respect. The word “promptly” does not permit a delay of mvre than two to three days. As the author was not brought before a judge until about five weeks had passed since his detention, the violation of article 9, paragraph 3, of the Covenant is flagrant. The fact that the author was held incommunicado until -251- Bertil WEXINERG~ -252-