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.
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.5
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, paragraph 3(c) and (d) and 5 of the Covenant,
is entitled to a remedy entailing his release.
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.
8.
The Committee would wish to receive
information on any relevant measures taken by
the State party in respect of the Committee’s
Views.
APPENDIX I
Individual opinion submitted by Mr. Waleed Sadi,
pursuant to rule 94, paragraph 3, of the Committee’s
rules of procedure,
concerning the Views of the Committee on
communication No 253/1987,
Paul Kelly v. Jamaica
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
I respectfully submit hereafter a separate opinion to
the Views adopted by the Human Rights Committee
on 8 April 1991 with regard to communication No.
253/1987, submitted by Paul Kelly against Jamaica. In
the Committee’s view, the complainant was a victim
of a violation of, inter alia, article 14, paragraph 3(d),
of the Covenant, in the sense that he was essentially
deprived of effective representation, as called for in
said provision, because court-appointed counsel did
not pursue Mr. Kelly’s right of appeal properly by
deciding against pursuing it without prior consultation
with his client. The central issue which the Committee
had to determine is whether any error of judgement by
the complainant’s legal counsel may be imputed to the
State party, and therefore render it responsible for the
alleged errors of counsel and accordingly serve as a
ground to order the release of the victim from
imprisonment and thus escape from the sentence
imposed upon him by the Westmoreland Circuit Court
for a murder committed on 2 July 1981.
5
See, for example, the Views of the Committee in
communications Nos. 210/1986 and 225/1987, para.
13.5 (Earl Pratt and Ivan Morgan), adopted on 6 April
1989.
66
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents