Submitted
by: Paul Kelly (represented by counsel)
Alleged
victim: The author
State
party concerned: Jamaica
Date
of communication: 15 September 1987
Date
of the decision on admissibility: 17 October 1989
The Human
Rights Committee, established under article 28 of the International Covenant
on Civil and Political Rights,
Meeting
on 8 April 1991,
Having
concluded its consideration of communication No. 253/1987, submitted to
.the Committee by Paul Kelly under the Optional Protocol to the International
Covenant on Civil and Political Rights,
Having
taken into account all written information made available to it by the author
of the communications and by the State party,
Adopts
the following:
Views under article 5 paragraph 4 of the Optional Protocol*
1. The author
of the communication (initial submission dated 15
September 1987 and subsequent correspondence) is Paul Kelly, a Jamaican citizen
awaiting execution at St. Catherine District Prison, Jamaica. He claims
to be the victim of a violation by Jamaica of articles 6, paragraph 2; 7s
9, paragraphs 3 and 4; 10; 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 submitted by the author
2.1 The
author was arrested and taken into custody on 20 August 1981. He was detained
until 15 September 1981 without formal charges being brought against
him. Following
a statement to the police given on 15 September 1981, 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 sentenced
to death. On 23 February 1983, the author appealed his conviction; on 28 April
1986, the Jamaican Court of Appeal dismissed his appeal without producing a
reasoned judgement. On appeal, author's counsel merely stated that he found
no merit in arguing the appeal. Because of the absence of a reasoned judgement
of the Court of Appeal, the author has refrained from further petitioning the
Judicial Committee of the Privy Council for special leave to appeal.
2.2 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. Jamieson in the belief that he had obtained the receipt from
Mr. Miller implicating them in the theft of the cow.
2.3 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 motive; 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.
2.4 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 him to confess to
the crime. He affirms that the police tried to have him sign a "blanko" confession,
and that he withstood the beatings 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.
Complaint
3.1 The
author alleges 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 contends 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.
3.2 The
author further notes 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 sole responsibility of the police, and he was unable to challenge
it. This situation, he contends, reveals violations of article 9, paragraphs
3 and 4, in that he was not "brought promptly before a judge or other officer
authorized by law to exercise judicial power", and because he was denied the
means of challenging the lawfulness of his detention during the first five weeks
following his arrest.
3.3 According
to the author, the State party violated article 14,
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 central lock-up at Kingston, pending "collection" by the Westmoreland
police, and merely told that he was wanted in connection with a murder
investigation. Further details were not forthcoming even after his transfer
to Westmoreland. It was only on 15 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 case, 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.
In 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 amount 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.
3.6 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 investigations, which might have assisted him
in preparing his defence, given that court-appointed legal assistance was not
immediately forthcoming.
3.7 In the author's
opinion, he was denied a fair hearing by an independent and
impartial tribunal, in violation of article 14, paragraph 1, of the Covenant.
Firstly, he contends that he was poorly represented by the two legal
aid lawyers who were assigned to him for the trial and the appeal. His representative
during the trial, for instance, allegedly never was in a position
to present his defence constructively; his cross-examination of prosecution
witnesses was superficial, and he did not call witnesses on the author's
behalf, although the author notes that his aunt, Mrs. Black, could have
corroborated his alibi. Furthermore, counsel did not call for the testimony
of a woman - the owner of the house where the accused had lived - who
had given the police information leading to the author's arrest. This, he submits,
constitutes a violation of article 14, paragraph 3 (e). Secondly, the
author alleges bias and prejudice on the part of the trial judge. The latter
allegedly admitted hearsay evidence presented by Basil Miller and several
other witnesses. When author's counsel opened his defence statement, the
judge reaffirmed his desire to dispose of the case expeditiously, while he refrained
from similar attempts to curtail the presentation of the prosecution's
case. He allegedly made disparaging remarks related to the case for
the defence, thus undermining the presumption of innocence. Finally, the judge's
conduct of the
voir dire in connection with the determination of the voluntary
character of the author's confession is said to have been "inherently
unfair".
3.8 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
organization, 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
conditions are said to constitute a breach of article 10 of the Covenant.
The author refers to the Committee's jurisprudence in this
regard.
a/
3.9 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.
3.10 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 elapsed since 3.7 In the author's
opinion, he was denied a fair hearing by an independent and
impartial tribunal, in violation of article 14, paragraph 1, of the Covenant.
Firstly, he contends that he was poorly represented by the two legal
aid lawyers who were assigned to him for the trial and the appeal. His representative
during the trial, for instance, allegedly never was in a position
to present his defence constructively; his cross-examination of prosecution
witnesses was superficial, and he did not call witnesses on the author's
behalf, although the author notes that his aunt, Mrs. Black, could have
corroborated his alibi. Furthermore, counsel did not call for the testimony
of a woman - the owner of the house where the accused had lived - who
had given the police information leading to the author's arrest. This, he submits,
constitutes a violation of article 14, paragraph 3 (e). Secondly, the
author alleges bias and prejudice on the part of the trial judge. The latter
allegedly admitted hearsay evidence presented by Basil Miller and several
other witnesses. When author's counsel opened his defence statement, the
judge reaffirmed his desire to dispose of the case expeditiously, while he refrained
from similar attempts to curtail the presentation of the prosecution's
case. He allegedly made disparaging remarks related to the case for
the defence, thus undermining the presumption of innocence. Finally, the judge's
conduct of the
voir dire in connection with the determination of the voluntary
character of the author's confession is said to have been "inherently
unfair".
State
party's observations
4.1 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 Jamaican 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, 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.
4.2 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 369/1989, 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". d/
Issues
and Proceedings before the Committee
5.1 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.
5.2 On 17
October 1989, the Human Rights Committee declared the communication admissible.
5.3 The
Committee has noted the State party's submissions of 8 May and 4 September 1990,
made after the decision on admissibility, in which it reaffirms its position
that the communication is inadmissible on the ground of non-exhaustion of domestic
remedies. The Committee takes the opportunity to expand
on its admissibility findings, in the light of the State party's further
observations. The State party has argued that the Judicial Committee of
the Privy Council may hear a petition for special leave to appeal even in the
absence of a written judgement of the Court of Appeal; it bases itself on its
interpretation of rule 4 jun rule 1 of the Privy Council's Rules of Procedure.
It is true that the Privy Council has heard several petitions concerning
Jamaica in the absence of a reasoned judgement of the Court of Appeal,
but, on the basis of the information available to the Committee, all of
these petitions were dismissed because of the absence of a reasoned judgement
of the Court of Appeal. There is therefore no reason to revise the Committee's
decision on admissibility of 17 October 1989.
5.4 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 7, 9, 10 and 14, paragraph 3, 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 2. In the circumstances, due weight must be
given to the author's allegations, to the extent that they have been sufficiently
substantiated.
5.5 As to
the claim under articles 7 and 14, paragraph 3 (g), of the Covenant, the Committee
notes that the wording of article 14, 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 fortiori, it is unacceptable to treat an accused person in a manner
contrary to article 7 of the Covenant in order to extract a 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 the 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).
5.6 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 some five
weeks before he was brought before a judge or judicial officer entitled to
decide on the lawfulness of his detention. The delay of over one month violates
the requirement, in article 9, paragraph 3, that anyone arrested on a criminal
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 a result,
his right under article 9, paragaph 4, was also violated, since he was not in
due time afforded the opportunity to obtain, on his own initiative, a decision
by the court on the lawfulness of his detention.
5.7 Inasmuch
as the author's claim under article 10 is concerned, the Committee
reaffirms that the obligation to treat individuals with respect for the
inherent dignity of the human person encompasses the provision of, inter
alia
, adequate medical care during detention. a/ The provision of basic sanitary
facilities to detained persons equally falls within the ambit of article
10. The Committee further considers that the provision of inadequate food
to detained individuals and the total absence of recreational facilities does
not, save under exceptional circumstances, meet the requirements of article
10. In the author's case, the State party has not refuted the author's
allegation that he has contracted health problems as a result of a lack
of basic medical care, and that he is only allowed out of his cell for 30
minutes each day. As a result, his right under article 10, paragraph 1, of the
Covenant has been violated.
5.8 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 once 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 the 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.
5.9 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
a 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 what constitutes "adequate time" requires an assessment
of the individual circumstances 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 Committee 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 call 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).
5.10 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 for leave to appeal to
the Court of Appeal, dated 23 February 1983, indicates that he did not wish
to be present during the hearing of the appeal, but that he wished legal aid
to be assigned for this purpose. Subsequently, and without previously consulting
with the author, counsel opined that there was no merit in the appeal, thus
effectively leaving the author without legal representation. The Committee is
of the opinion that while article 14, paragraph 3 (d), does not entitle the
accused to choose counsel provided to him free of charge, measures must be taken
to ensure that counsel, once assigned, provides effective representation in
the interests of justice. This includes consulting with, and informing, the
accused if he intends to withdraw an appeal or to argue before the appeals court
that the appeal has no merit.
5.11 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 14, paragraph
3 (c), to be tried without "undue delay" was violated because almost 18 months
elapsed between his arrest and the opening of the trial. While the Committee
reaffirms, as it did in its general comment on article 14, that all stages of
the judicial proceedings should take place without undue 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.
5.12 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 5.3 above. This, in the Committee's
opinion, entails a violation of article 14, paragraph 3 (c), and article 14,
paragraph 5. 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
may turn out to be. g/
5.13 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.
5.14 The
Committee is of the
opinion that
the imposition of a sentence of death
upon the conclusion 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 (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". In the present case,
while a petition to the Judicial Committee is in theory still available, it
would not be an available remedy within the meaning of article 5, paragraph
2 (b), of the Optional Protocol, for the reasons indicated in paragraph 5.3
above. Accordingly, it may be concluded that the final sentence of death was
passed without having met the requirements of article 14, and that as a result,
the right protected by article 6 of the Covenant has been violated.
6. 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 the Committee disclose violations of articles
6, 9, paragraphs 2 to 4, 10 and 14, paragraphs 3 (c) and (d) and 5 of the
Covenant.
7. It is
the view of the Committee that, in capital punishment cases, States 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 14, paragraphs
3 (c) and (d) and 5 of the Covenant, is entitled to a remedy entailing
his release.
8. The Committee
would wish to receive information on any relevant measures taken
by the State party in respect of the Committee's views.
[Done in
English, French, Russian and Spanish, the English text being the original version.]
Notes
* Individual opinions submitted by Mr. Waleed Sadi and Mr. Bertil Wennergren, respectively, are appended.
APPENDIX I
APPENDIX II
Individual opinion submitted by Mr. Bertil Wennerg en pursuant to rule 94, Paragraph 3, of the Committee's rules of procedure concerning the Committee's views on communication No. 253/1987, Paul Kelly v. Jamaica