While sharing the view of the Committee
that in proceedings for serious crimes, especially
capital punishment cases, a fair trial for accused
persons must provide them with effective legal
counsel if the accused are unable to retain private
,counsel, the responsibility of the State party in
providing legal counsel may not go beyond the
responsibility to act in good faith in assigning legal
counsel to accused individuals. Any errors of
judgement by court-appointed counsel cannot be
attributed to the State party any more than errors by
privately retained counsel can be. In an adversary
system of litigation, it is unfortunate that innocent
people go to the gallows for mistakes made by their
lawyers, just as criminals may escape the gallows
simply because their lawyers are clever. This flaw
runs deep into the adversary system of litigation
applied by the majority of States parties to the
Covenant. If court-appointed lawyers are held
accountable to a higher degree of responsibility than
their private counterparts, and thus the State party is
made accountable for any of their own errors of
judgement, then, I am afraid, the Committee is
applying a double standard.
by law to exercise judicial power. A similar right is
contained in article 5 of the European Convention on
Human Rights, which is applicable to the “lawful
arrest or detention of a person effected for the purpose
of bringing him before the competent legal authority
on reasonable suspicion of having committed an
offence, or when it is reasonably considered necessary
to prevent his committing an offence or fleeing after
having done so.”
The author was arrested and taken into
custody on 20 August 1981; he was detained
incommunicado. On 15 September 1981 he was
charged with murder; only one week later was he
brought before a judge.
While article 9, paragraph 1, of the Covenant
covers all forms of deprivation of liberty by arrest or
detention, the scope of application of paragraph 3 is
limited to arrests and detentions “on a criminal
charge”. It would appear that the State party interprets
this provision in the sense that the obligation of the
authorities to bring the detainee before a judge or
judicial officer does not arise until a formal criminal
charge has been served to him. It is, however,
abundantly clear from the travaux preparatoires that
the formula “on a criminal charge” was meant to cover
as broad a scope of application as the corresponding
provision in the European Convention. All types of
arrest and detention in the course of crime prevention
are therefore covered by the provision, whether it is
preventive detention, detention pending investigation
or detention pending trial. The French version of the
paragraph (“détenu du chef d’une infractin pénale”)
conveys this meaning better than the English version.
I therefore beg to differ with the
Committee’s view that the author should be released
on account of the alleged errors made by counsel
assigned to him for the appeal. I would have been
open to suggestions of other remedies to be granted to
the complainant, including declaring a mistrial or
calling for another judicial review of his case by the
appellate court to determine the matter of alleged
gross errors made by his counsel.
APPENDIX II
It should be noted that the words “shall be
brought promptly” reflect the original form of habeas
corpus (“Habeas corpus NN ad sub-judiciendum”) and
order the authorities to bring a detainee before a judge
or judicial officer as soon as possible, independently
of the latter’s express wishes in this respect. The word
“promptly” does not permit a delay of more than two
to three days.
Individual opinion submitted by Mr. Bertil
Wennergren,
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
As the author was not brought before a judge
until about five weeks had passed since his detention,
the violation of article 9, paragraph 3, of the Covenant
is flagrant. The fact that the author was held
incommunicado until he was formally charged
deprived him of his right, under article 9, paragraph 4,
to file an application of his own for judicial review of
his detention by a court. Accordingly, this provision
was also violated.
I concur in the views expressed in the Committee’s
decision. However, in my opinion, the arguments in
paragraph 5.6 should be expanded.
Anyone deprived of his liberty by arrest or
detention shall, according to article 9, paragraph 4, of
the Covenant, be entitled to take proceedings before a
court. In addition, article 9, paragraph 3, ensures that
anyone arrested or detained on criminal charges shall
be brought before a judge or other officer authorized
67
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