M.F. v. Jamaica

March 1987 (initial submission) The Human Rights Committee , established under article 28 o f the International Covenant on Civil and Political Rights, Meeting on 21 October 1991, Adopts the following: Decision to revise an earlier decision on admissibility

The author of the communication (initial submission dated 1 0 March 1987) is M.F., a Jamaican citizen currently awaitin g execution at St. Catherine Dis trict Prison, Jamaica. He claims to be a v ictim of a violation by Jamaica of article 14 of th e Intern ational Covenant on Civil and Political Rights. He i s represented by counsel.

The author was convicted of murder in the Home Circuit Court of Kingston on 30 January 1986 and sentenced to death. He h ad been accused of stabbing and woundi ng two individuals with an ice pick; */ Made public by decision of the Human Rights Committee. one of them, one R.Y., subsequently died. The other perso n testified against him during the trial. The author indicate s thatthe coroner's verdict was that the victim's death had not been caused by stab wounds but by a fractured skull.

The author indicates that his privately retained lega l representative was not present in court when the trial began an d the judge proceeded to empanel the jury. The author refused t o enter a plea, but the judge nonetheless entered a plea of "no t guilty" for him. The author submits that the judge chose t o proceed in the absence of his lawyer, taking account of polic e reports that one of the princi pal prosecution witnesses, one D.T., would not be available if the trial were adjourned.

The author appealed his conviction and sentence, but th e Jamaican Court of Appeal dismissed the appeal on 21 May 1987 . Subsequently, he sought to obtain the Court of Appeal's judgment, to no avail.

At the time of submission, the author had not petitioned the Judici al Committee of the Privy Council for special leave t o appea l, because he lacked the means to do so. Subsequently, i n 1988, he secured pro bono legal representation by a law firm i n London for this purpose. In May 1990, following the Committee' s decision of 15 March 1990 declaring the case admissible, counse l informed the Committee that he had succeeded in obtaining th e judgment of the Court of Appeal, pointing out that it took h im over one year and a half to obtain this document and emphasizing tha t "availability" of relevant court documents should be deemed t o refer to practical and reasonably effective methods whereby a n appellant or his counsel might receive the appropriate documents. While criticizing the "apparent administrative inefficiency an d un-coo perativeness" of the State party which, for a considerabl e time, made the exhaustion of domestic remedies a practica l imposs ibility, he nonetheless confirms that he is now proceedin g with a petition for special leave to appeal to the Judicia l Committee on the author's behalf. English Annex Page The complaint :

The author complains that the conduct of his trial and of his appeal were beset with several irregularities, in violation o f article 14 of the Covenant. Thus, he claims that he had wholl y inadequate opportunities to consult with his lawyer prior to an d during the trial. There was no regular communication with thi s lawyer prior to the trial, and the lawyer visited him only once , briefly, before its beginning. In court, their contacts wer e confined to brief exchanges, e ach of no more than 10 to 15 minutes duration. The author adds that his lawyer was repeatedly ab sent in court and usually sent telephonic excuses that he had to atten d trial dates elsewhere.

The author concedes that the prosecution witnesses wer e cross-examined, adding, howeve r, that he had asked for a potential alibi witness, a girl in his c ompany at the time of his arrest, to testify on his behalf, since s he allegedly would have been able to cast doubts on the testimony of D.T. His counsel made no attempt to contact this witness.

As to his appeal, the author maintains that he was no t assisted in its preparation and merely informed that a legal ai d representative had been assigned to him for the purpose. H e addressed two letters to the representative prior to the hea ring of the appeal but did not receive a reply. Subsequently, he and his counsel repeatedly requested the written judgment of the Court of Appeal; it is submitted that the delay in obtention of thi s judgment constitutes a violati on of the author's right to have his conviction and sentence review ed by a higher tribunal according to law. The State party's information and observations :

The State party submits that the communication is inadm issible on the ground that the author has failed to exhaust availabl e domestic remedies, as required by article 5, paragraph 2(b), of the Optional Protocol. It points out that the author retains th e right to petition the Judicial Committee of the Privy Council for special leave to appeal, and that legal aid would be available to him for that purpose pursuant to Section 3, paragraph 1, of the Poo r English Annex Page Prisoners' Defence Act.

The State party further adds that doubts as to th e availability of the written ju dgment of the Court of Appeal in the case may be attributable to some confusion over the author' s identity . In this context, the Registrar of the Court of Appea l had conveyed the following information: "There is an appeal from a [M. F.] convicted of murder on 30 January 1986. Appeal was h eard on 21 May 1987. (...) On 19 June 1987 written judgment was given. The Registrar opin ed that the confusion lay in the name forwarded to the office , i.e. [M.F.]."

The State party submits that t he availability of the reasoned judgment was not at issue at any stage in the proceedings. Further to an interlocutory decision in the case adopted by the Comm ittee's Working Group in October 1989, in which the State party had bee n requested to make the written judgment of the Court of Appea l availabl e to the author or his counsel, M.F. was provided with a copy.

The State party submits that in cases similar to the au thor's, where a written judgment was in fact delivered by the Court o f Appeal, the obligation to make the judgment available to the author of a complaint is discharged upon delivery of the written ju dgment. Accordingly, the judgment was available to the author and hi s counsel on 19 June 1987, the date of its delivery.

Before considering any claims contained in a communication , the Human Rights Committee mus t, in accordance with rule 87 of its rules of procedure, decide whether or not it is admissible unde r the Optional Protocol to the Covenant.

During its 38th session, the Committee considered th e admiss ibility of the communication. With respect to th e requirement of exhaustion of d omestic remedies, it noted the State party's contention that the co mmunication was inadmissible because of the author's failure to petition the Judicial Committee of the Privy Council for special leave to appeal. In this context, th e Committee observed that although the Judicial Committee may i n English Annex Page principle hear petitions in th e absence of a written judgment from the Court of Appeal, its past practice revealed that all petitions unsupported by the relevant court documents had been dismiss ed. It therefore considered that if a petition for leave to appeal was to be considered an available and effective remedy, it had to b e supported by the judgment from which leave to appeal was sought . The Committee further considered that counsel had made reasonable efforts to obtain the documents in question, and that he wa s entitled to assume that a petition for special leave to appea l would not be an effective remedy within the meaning of article 5, paragraph 2(b), of the Optional Protocol.

On 15 March 1990, therefore, the Committee declared th e communication admissible in as much as it appeared to raise issues under article 14 of the Covenant.

The Committee has taken n ote of the State party's submission, made after the adoption of the decision on admissibility, that the Court of Appeal's duty to make its judgment available to th e accused is discharged when it has been rendered in writing, an d that the judgment of the Court of Appeal would have been available to the author and his counsel as of 19 June 1987.

While considering that the adoption of the written judgmen t cannot of itself be equated with "availability" of the same t o either the appellant or his counsel, and that there should b e reasonably efficient administrative channels through which either appellant or counsel may request and obtain relevant cour t documents, the Committee notes that author's counsel did obtain a copy of th e judgment of the Court of Appeal shortly after th e adoption of the decision on admissibility in the case. Thus he now has the documents enabling him to effectively petition the J udicial Comm ittee; the Committee further observes that counsel ha s confirmed that he will lodge a petition for special leave to appeal on the author's behalf, and therefore is in the process o f exhausting an available domest ic remedy, potentially providing the judicial redress sought.

The Human Rights Committee therefore decides: English Annex Page (a) that the admissibility decision of 15 March 1990 is set aside; (b) that the communication is inadmissible under article 5, paragraph 2(b) , of the Optional Protocol; (c) that, since this decision may be reviewed under rule 92, paragraph 2, of the Committee's rules of procedure upon receipt of a written request by or on behalf of th e author containing information to the effect that th e reasons for inadmissibility no longer apply, the Stat e party is requested, under rule 86 of the Committee' s rules of procedure, not to carry out the death sentence against the author before he has had a reasonable time, after completing the effective domestic remedie s available to him, to request t he Committee to review the present decision; (d) that this decision be communicated to the State party, t o the author and to his counsel. [Done in English, French, Russian and Spanish, the English tex t being the original version.] -*-