Submitted
by: Z.P. (name deleted)
Alleged
victim: The author
State
party concerned: Canada
Date
of communication: 12 April 1988 (date of initial letter)
The Human
Rights Committee, established under article 28 of the International Covenant
on Civil and Political Rights,
Meeting
on 11 April 1991,
Adopts
the following:
Decision on admissibility
1. The author
of the communication (first submission dated 12 April 1988 and
subsequent correspondence) is Z.P., a Yugoslav citizen formerly residing and
employed
in Montreal, Canada, at present residing in Yugoslavia. He claims to
be the victim of
a violation of his human rights by Canada. Although he does
not specifically
invoke the International Covenant on Civil and Political
Rights, it appears from his submissions that his allegations relate to
articles 9 and 14
of the Covenant.
Facts
as submitted by the author
2.1 The
author, a technician in civil engineering, lived in Canada from September 1970
to December 1981, and was employed with a Montreal engineering company as an
industrial draftsman. In December 1981, he was deported to Yugoslavia.
2.2 The
author was accused of having raped, in 1978 and 1979 respectively, two Canadian
women, F.B. and H.R. On 30 April 1979, he was sentenced to three years' imprisonment
for the rape of F.B. and on 26 March 1980, he was sentenced to seven years'
imprisonment for the rape of H.R. In both instances, Z.P. claimed to be innocent
of the charges.
2.3 In the
case of F.B., the author was formally charged with rape by the
Montreal Urban Community Police on 11 July 1978. Z.P. was assigned a legal
representative,
Maitre J.C., and asked for a trial by jury. On
20 December 1978, he instead opted for a trial before a single judge. His
trial started before
the Montreal Court of Assizes (four des Sessions de la
Paix) on 29 March 1979. On 10 April 1979 he was found guilty as charged and
the sentence
was pronounced on 30 April 1979. On 8 May 1979, Z.P. applied for
leave to appeal against his conviction to the Quebec Court of Appeal; two days
later, the
Court of Appeal granted leave to appeal. On 21 March 1980, the
transcript of the proceedings and the evidence before the court of first
instance were submitted
to the Court of Appeal, which heard the appeal on
19 January 1981 and dismissed it on 13 February 1981. On 13 March 1981, Z.P.sought
leave to appeal to the Supreme Court of Canada; the Supreme Court refused leave
to appeal on 22 June 1981.
2.4 In the
case of H.R., the author was arrested on 25 March 1979 and charged
with rape the following day, i.e., three days before the
beginning of
his trial
in the case of F.B. Z.P. was represented by the same lawyer who
defended him in the case of F.B., and he again initially asked for a trial by
jury. On
23 April 1979, he changed his mind and opted for a trial before a
single judge; a trial in camera was ordered at the request of the prosecutor.
On 26 April
1979, the author's lawyer, Maitre J.C., asked to be removed from
the case relating to the rape of H.R., and several lawyers handled later
stages of the case.
2.5 On 15
November 1979. Z.P. applied for permission to assume his own representation
and entered a plea of not guilty. A lawyer representing the Yugoslav Embassy
in Canada acted as his counsel. The case was heard between 15 November 1979
and 28 February 1980; on 29 February 1980, Z.P. was found guilty as charged;
sentence was passed on 26 March 1980. On 16 May 1980. the author filed a formal
notice of application for permission to appeal against
conviction and
requested an extension of the deadline as well as a judicial review. His case
was heard on 15 September 1980 and dismissed on 26 September 1980. The author
then sought leave to appeal to the Supreme Court but his petition was denied
on 22 June 1981.
Complaint
3.1 The
author claims that he did not have a fair trial in either of the criminal cases-against
him, and maintains that he is entitled to a re-trial before the
Canadian courts
.
3.2 In respect
of the first rape charge, the author alleges that:
(a) He was
found guilty in the absence of conclusive evidence against him;
(b) The
trial judge was wrong to admit as evidence testimony concerning a similar act
involving H.R., the victim of the second rape charge;
(c) The
trial judge was wrong to admit as evidence contradictory statements made by
the victim;
(d) The
trial judge wrongly interpreted the author's words addressed to F.B. as threats
against her;
(e) The
judges of the Court of Appeal similarly failed to see that the words deemed
to be threats against F.B. could not be used as evidence against him, since
F.B. was no longer able to tell the court the content of the presumed threats;
(f) Both
the trial judge and the judges on the Court of Appeal were wrong to admit as
evidence testimony of a friend of F.B., who merely told the court that she had
been informed that F.B. had been raped;
(g) Both the court
of first instance and the Court of Appeal should have provided him with an interpreter,
because of his insufficient mastery of English and French;
(h) The
trial judge, at the conclusion of the trial, effectively acted as a "defence
lawyer" for F.B., finding the author guilty on the basis of mere "suppositions".
3.3 In respect
of the second rape charge, the author alleges that:
(a) He was
framed by the police, who arrested him within a minute after H.R. left his apartment.
He adds in this context that the police had already arrived in front of the
building when H.R. left his flat;
(b) He was
arrested for assault but later charged formally with a different offence, namely
rape;
(c) The
trial judge was wrong to admit as evidence a number of contradictory statements
made by H.R.;
(d) The
trial judge first misinterpreted and subsequently misused a statement given
by H.R. to the effect that the author had used a pretext to lure her into his
apartment;
(e) The
trial judge was wrong to admit as evidence contradictory statements made by
the arresting officer and the doctor who examined H.R. after the offence, once
their evidence had been compared with that of H.R.;
(f) Both
the court of first instance and the Court of Appeal should have provided him
with an interpreter, because of his insufficient mastery of English and French;
(g) The
Montreal Office of Legal Aid wrongly refused to provide him with the assistance
of a lawyer during the trial and for purposes of preparing the appeal;
(h) The
trial judge wrongly accepted as evidence testimony about a similar act involving
F.B., the alleged victim of the first rape offence;
(i) He did
not have all the court transcripts in his possession, which should have been
made available to him free of charge;
(j) The
trial judge refused to allow him to be tried in a public hearing before a jury.
State
party' s observation
4.1 The
State party submits that the communication is inadmissible under articles 1,
2 and 3 of the Optional Protocol. It contends that Z.P. did not sufficiently
support his allegations with facts to establish
prima facie violations of the Covenant and that his claims, referring
merely to violations of "the law of Canada and the Human Rights", do not meet
the admissibility criteria of article 2 of the Optional Protocol. It further
points out that the author in effect seeks a review of the evaluation of facts
and evidence
before the Canadian
courts, and adds, with reference to the Committee's jurisprudence, that the
Committee is not competent to review findings of fact made by national tribunals.
To this extent, therefore, the State party considers the communication to be
inadmissible as incompatible with the provisions of the Covenant.
4.2 In respect
of the author's trial in the case of F.B., the State party
notes that virtually all of the author's claims raise issues of fact and
evidence. Only his
claim that the courts did not provide him with an
interpreter might conceivably raise issues under article 14, paragraph 3 (f),
of the Covenant.
The State party affirms, however, that the author failed to
support this allegation adequately. It notes that he could have requested the
assistance
of an interpreter, or that his lawyer could have made such a
request on his behalf; however, the records of both trials show that no
request for an interpreter
was made. Moreover, the court records reveal that
the author was perfectly able to follow the proceedings and to express himself
in English
and/or in French.
4.3 In respect
of the trial in the case of H.R., the State party reiterates
its arguments,
lain flut
in paragraph
4.2 above in as much as the author's claim
about the absence of an interpreter is concerned. As to his claim
concerning
the lack of legal assistance during the second trial, the State party points
out that
the author asked to defend himself during his trial in the court of
first
instance; furthermore, the
records reveal that Z.P. was advised by a
lawyer by virtue of a legal aid order and that, accordingly, he was given
legal assistance
in accordance with the Legal Aid Act. The State party
therefore concludes that the author is estopped from arguing that he had to
defend himself:
4.4 As to
the issue of legal assistance for purposes of the appeal in the
second trial, the State party explains that the author's request for legal aid
was refused
in the light of the representations he made to the Legal Aid
Board, the evidence presented during the trial and the verdict of the court
of first
instance.
Since
the author did not present any facts to the effect that
he had any arguable grounds of appeal, the Board concluded that he was not
entitled under the
Legal Aid Act to receive such aid for the purpose for which he
had requested it. The State party adds that article 14, paragraph 3 (d),
does not require
a hearing in the physical presence of the applicant in order
to determine his legal aid entitlements: in the author's case, a telephone
conversation sufficed.
4.5 In respect
of the claim that the author was unable adequately to prepare
his defence owing to the alleged unavailability of relevant court documents,
the State
party contends
that the
author is merely complaining of his own
omission. In fact, by letter dated 31 August 1981 drafted in adequate French,
after he
had exhausted his domestic remedies, Z.P. expressed interest in
obtaining copies
of the court transcripts and the court tapes. The State
party submits that if the author had considered it essential for his defence
to be in
possession of the transcripts, it was his responsibility to request
them.
4.6 With
regard to the author's claim that he was entitled to a public trial
before a jury, the
State party notes that Z.P. himself, on 23 April 1979,
opted for a trial before a single judge. Furthermore, it points out that article
14, paragraph 1, stipulates that the public may be excluded from all or part
of a trial for reasons of morals - a request frequently made and granted in
sexual abuse cases - and submits that the author has failed to adduce a single
argument in favour of a public trial.
4.7 Finally,
in respect of the allegation that there was a contradiction
between the charge against the author at the time of the arrest and the charge
under which
he was tried, the State party submits that both articles 9,
paragraph 2, and 14, paragraph 3 (a), were complied with, since what matters
for the
legal qualification of the offence is the information contained in the
police report prepared
after the arrest. Both the application to institute
proceedings against Z.P., dated 25 March 1979 (the day of the arrest), and the
written
information submitted to the judge on 26 March 1979 refer to a rape
charge.
Issues
and proceedings before the Committee
5.1 Before
considering any claims contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
determine
whether or not it is admissible under the Optional Protocol to the
Covenant.
5.2 The
Committee notes that many of the author's allegations, both in
connection with the case of F.B. and H.R., relate to the evaluation of facts
and evidence
by the trial judge. The Committee observes that it is generally
for the appellate courts of States parties to the Covenant and not for the
Committee to evaluate
the facts and evidence placed before domestic courts and
to review the interpretation of domestic law by national courts. Similarly,
it is for
the appellate courts and not for the Committee to review alleged
errors by the judge in the conduct of a trial, unless it is apparent from the
author's
submission that the conduct of the trial was clearly arbitrary or
tantamount to a denial of justice, or that the judge manifestly violated his
obligation
of impartiality. The author has not shown that the conduct of the
trials in
question suffered from such defects. In this respect, therefore,
the author's claims of unfair trials do not come within the competence of the
Committee
and, in that sense, fall outside the scope
of protection provided by
article 14, paragraph 1, of the Covenant. Accordingly, this part of the
communication is
inadmissible as incompatible with the provisions of the
Covenant, pursuant to article 3 of the Optional Protocol.
5.3 With
respect to the claim that the author was denied the services of an interpreter,
the Committee finds that Z.P. has failed to substantiate his claim sufficiently,
for purposes of admissibility.
The material before the Committee shows that the author could express
himself in adequate English and French, and that he did not apply for an interpreter
during the trial. The Committee reaffirms in this context that the requirement
of a fair hearing does not obligate States parties to make the services of an
interpreter available ex officio or upon application to a person whose
mother tongue differs from the official court language, if the person is capable
of expressing himself adequately in the official language.
a/
5.4 In respect
of the claim that the author was refused legal aid for his appeal in the case
concerning H.R., the case file reveals that the Montreal Legal Aid Board did
examine the author's request, but concluded that the interests
of justice did not require the assignment of legal aid. Accordingly, the author
has not sufficiently substantiated his allegation, for purposes of admissibility,
and this part of the communication is inadmissible under article 2 of the Optional
Protocol.
5.5 As to
the alleged violation of article 14, paragraph 3 (b), the Committee notes that
the first time the author complained about the unavailability of the trial transcript
was over two months after being denied leave to appeal by the Supreme Court.
In the circumstances, he is estopped from invoking an
ex post facto violation of his right to adequate time and facilities
for the preparation of his defence. The Committee concludes that this part of
the communication is inadmissible as an abuse of the right of submission, pursuant
to article 3 of the Optional Protocol.
5.6 Finally,
with regard to the claims of a violation of article 14,
paragraph 1 (entitlement to a public hearing), and article 9, paragraph 2, the
author has
not sufficiently substantiated his allegation, for the purposes of
admissibility, and this part of the communication is also inadmissible under
article
2 of the Optional Protocol.
6. The Human
Rights Committee therefore decides:
(a) The
communication is inadmissible under articles 2 and 3 of the Optional Protocol;
(b) This
decision shall be communicated to the State party and to the author of the
communication.
[Done in
English, French, Russian and Spanish, the English text being the original version.]
Notes
a/ See
views in communication No. 219/1986, para. 10.2, (Guesdon v. France),
adopted on 25 July 1990.