March – 5 April 2002
The facts as submitted by the author
As it appears from the author’s quotations from the Court hearing, on 19 May 1995, the trial against the author lasted for five days. During the trial the victim of the crime for which the author was charged testified that on 25th July 1993 at about 2.30 p.m. she went to see her boyfriend who worked at a funeral parlor in St. Andrew. On her way to the funeral parlor, she did not find her boyfriend but the author who was working for the same company. They talked for a few minutes, before the author’s girlfriend came and the author and his girlfriend left together. After the author had left, a group of men, who were complete strangers to the victim and armed with a gun, surrounded her and took her to a room behind the funeral parlor where all of them raped her. According to the victim, the author entered the room some time later. He was also carrying a gun. The victim asked the author to rescue her. According to the victim, the author joined the group and raped her. The group of men also stole her watch and $200. Several hours after being brought to the funeral parlor, the victim was released and went home. After 9 days she complained to the police and provided them with the author’s name. On 29 October 1993, the author was arrested and charged with the crime. No other persons appear to have been charged in connection to the crime. The author denied the allegation of gang rape and possession of a gun, whereas he admitted sexual intercourse with the woman on the same day, with her consent. The author stated that on the very same day, he had met the complainant and had talked with her. She came to his house, because she had trouble with her boyfriend, and it was she who took the initiative for intercourse. During the trial, the case rested on the identification evidence of the victim. The victim stated that she heard somebody calling the author “Malcolm” during the rape, and thus she gave his name and description to the police. All the other men were strangers to her. The author however, submitted that when they were talking, they introduced themselves, and that’s why she knew his name. The author filed an application for leave to appeal on the grounds of unfair trial. One of the grounds for appeal was that during the cross-examination of the victim with respect to the identification of the author, the judge stopped the counsel from continuing the cross-examination of the victim. The Court of Appeal rejected the application for leave to appeal.
Examination of admissibility and merits
With respect to exhaustion of domestic remedies, the Committee notes that the author has argued that he unsuccessfully sought leave to appeal, and that no further domestic remedy is available to him. The State party has not claimed that other domestic remedies are still available. The Committee considers therefore that it is not precluded by article 5, paragraph 2 b) of the Optional Protocol from examining the communication.
Although the author’s submission raises issues about the fairness of the trial under article 14, and even in the absence of any response by the State party, despite its promise to investigate the matter, the Committee considers that the author has not sufficiently substantiated for purposes of admissibility his allegations of a violation of article 14 of the Covenant. Consequently, this part of the communication is inadmissible under article 2 of the Optional Protocol.
The remaining part of the communication, i.e., the author’s claim under article 7 of the Covenant, is admissible. The author has claimed that the use of the tamarind switch constitutes cruel, inhuman and degrading punishment, and that the imposition of the sentence violated his rights under article 7 of the Covenant. The State party has not contested the claim. Irrespective of the nature of the crime that is to be punished or the permissibility of corporal punishment under domestic law, it is the consistent opinion of the Committee that corporal punishment constitutes cruel, inhuman and degrading treatment or punishment contrary to article 7 of the Covenant. The Committee finds that the imposition or the execution of a sentence of whipping with the tamarind switch constitutes a violation of the author's rights under article 7.
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 reveal a violation of article 7 of the International Covenant on Civil and Political Rights.
Under article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy, including refraining from carrying out the sentence of whipping upon the author or providing appropriate compensation if the sentence has been carried out. The State party should ensure that similar violations do not occur in the future by repealing the legislative provisions that allow for corporal punishment.
On becoming a State party to the Optional Protocol, Jamaica recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not. This case was submitted for consideration before Jamaica's denunciation of the Optional Protocol became effective on 23 January 1998; in accordance with article 12(2) of the Optional Protocol the communication is subject to the continued application of the Optional Protocol. Pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant. The Committee wishes to receive from the State Party, within ninety days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views. Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s annual report to the General Assembly.