(Communication No.668/1995, U.N.Doc. CCPR/C/65/D/668/1995 (1999)
Download Judgment: English
Year: 1999
Court: Human Rights Committee
Tags: right to a fair trial

The authors of the Petition, Errol Smith and Oval Stewart, at the time of making this petition were detained at the South Rehabilitation Centre in Kingston, Jamaica. It was alleged that on 30 June 1980, the authors started firing shots at two men who were moving a bed. The authors then allegedly fled the scene at the complainants, Owen Bailey and Rohan Francis. It was further alleged that Bailey ran back to his house, where his father was, and where he was shot shortly after, while Francis hid at the back of the house. Rohan made a statement with the police, which got lost later and he was asked to make another one three months later. Rohan also identified the authors as the people who had approached him on the day of Owen Bailey’s murder.

The authors were convicted for murder and sentenced to death on 8 November 1982 by the Home Circuit Court of Jamaica. The authors’ appeals were dismissed by the Jamaican Court of Criminal Appeal on 14 December 1984. On 17 July 1986, the Judicial Committee of the Privy Council dismissed their appeals. The authors have not sought a constitutional motion to the Jamaican Supreme Court because they were denied legal aid for such motions. On 15 February 1991, Oval Stewart’s death sentence was commuted to life imprisonment. Following the enactment of Offences Against the Person (Amendment) Act 1992, Errol Smith’s death sentence was also commuted.

The authors claim a violation of their right to effective legal representation as their counsel did not argue the case effectively and failed to appear at the Court of Appeal level, contrary to Article 14, paragraphs 3(d) and 5 of the Convention. Further, the right to fair trial was affected by the delay of two years by the Court of Appeal to render its decision on the appeal, contrary to Article 14, paragraphs 3(c) and 5 of the Convention. In addition, Mr. Stewart alleges that he received inhumane treatment when on death row , including bar on correspondence with non-legal persons, poor nutritional quality of food served and lack or poor medical care, contrary to Articles 7 and 10, paragraph 1 of the Convention.

Human Rights Committee concluded and declared that the conditions for declaring the communication admissible, including the requirement of exhaustion of domestic remedies had been met, while some were not, as detailed below. The claim under the right to fair trial was rejected as it was not properly canvassed within the meaning of Article 2 of the Optional Protocol. The Committee also rejected the claim under Article 14 on the deficiencies in the testimony of the main prosecution witness within the meaning of Article 2 of the Optional Protocol.

The committee however considered the fact that the testimony by the witness was mislaid as it did not constitute the original prosecution case and was deemed to be contrary to Article 14, paragraph 3(d). However, the court rejected the question of legal assistance as impacted on the above provisions. The Committee also found that the 25 months in delay before rendering of a judgement by the Court of Appeal was in violation of Article 14, paragraph 3(c). Further, the Committee found that the authors’ treatment in detention was inhumane and violated Articles 7 and 10, paragraph 1 of the Convention. In sum, the Committee ordered effective remedies, including compensation for the authors and order for early release.