7.2
The
same
issues
concerning
admissibility have already been examined by
the Committee in its Views on communications
Nos. 230/19871 and 283/19882. In the
circumstances of those cases, the Committee
concluded that a constitutional motion was not an
available and effective remedy within the
meaning of article 5, paragraph 2 (b), of the
Optional Protocol, and that, accordingly, the
Committee was not precluded from examining
the merits.
6.3
As to the absence of legal aid for the
filing of constitutional motions, the State party
submits that nothing in the Optional Protocol or
in customary international law supports the
contention that an individual is relieved of the
obligation to exhaust domestic remedies on the
mere ground that there is no provision for legal
aid and that his indigence has prevented him
from resorting to an available remedy. It is
submitted that the Covenant only imposes a duty
to provide legal aid in respect of criminal
offences (article 14, paragraph 3(d)). Moreover,
international conventions dealing with economic,
social and cultural rights do not impose an
unqualified obligation on States to implement
such rights: article 2 of the International
Covenant on Economic, Social and Cultural
Rights provides for the progressive realization of
economic rights and relates to the “capacity of
implementation of States”. In the circumstances,
the State party argues that it is incorrect to infer
from the author’s indigence and the absence of
legal aid in respect of the right to apply for
constitutional redress that the remedy is
necessarily non-existent or unavailable.
7.3
The Committee has taken due note of
the fact that subsequent to its decision on
admissibility the Supreme (Constitutional) Court
of Jamaica has had an opportunity to determine
the question whether an appeal to the Court of
Appeal of Jamaica and the Judicial Committee of
the Privy Council constitute “adequate means of
redress” within the meaning of section 25,
paragraph 2, of the Jamaican Constitution.
The Supreme (Constitutional) Court has since
replied to this question in the negative by
accepting to consider the constitutional
motion of Earl Pratt and Ivan Morgan
(judgment entered on 14 June 1991). The
Committee observes that whereas the issue is
settled under Jamaican constitutional law,
different considerations govern the application of
article 5, paragraph 2(b), of the Optional
Protocol, such as the length of the judicial
proceedings and the availability of legal aid.
6.4
As to the author’s claim of ill-treatment
by the police, the State party observes that this
issue was not brought to its attention in the initial
submission, and that the Committee should not
have declared the communication admissible in
respect of article 10 without previously having
apprised the State party of this claim. It adds that,
in any event, the communication is also,
inadmissible in this respect, as the author did not
avail himself of the constitutional remedies
available to him under sections 17(l) and 25(l) of
the Jamaican Constitution: any person alleging
torture or inhuman and degrading treatment or
other punishment may apply to the Supreme
Court for constitutional redress.
7.4
In the absence of legal aid for
constitutional motions and bearing in mind that
the author was arrested in August 1981,
convicted in March 1983, and that his appeals
were dismissed in July 1986 by the Court of
Appeal of Jamaica and in October 1987 by
the Judicial Committee of the Privy Council,
the Committee finds that recourse to the Supreme
(Constitutional) Court is not required under
article 5, paragraph 2(b), of the Optional Protocol
in this case, and that there is no reason to reverse
the Committee’s decision on admissibility
of 17 October 1990.
6.5
In the light of the above, the State party
requests the Committee to review its decision on
admissibility.
Post-admissibility considerations and
examination of merits
7.5
As to the allegation concerning the
author’s ill-treatment by the police, the
Committee notes that this claim was reproduced
in resolution 29/88 approved by the
Inter-American Commission on Human Rights, a
7.1
The Committee has taken note of the
State party’s request, dated 12 February 1991, to
review its decision on admissibility, as well as its
criticism of the reasoning leading to the decision
of 17 October 1990.
1
Raphael Henry v. Jamaica, Views adopted
on 1 November 1991, forty-third session.
2
Aston Little v. Jamaica, Views adopted
on 1 November 1991, forty-third session.
104
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