3.4 Finally, the author alleges a violation of article 14, paragraph 3 <b),
because he, or his representative, were denied adequate time for the
preparation of the defence. In particular, it is submitted that the trial
transcript reveals that the attorney assigned to the case was instructed on
the very day on which the trial began, Accordingly, he had less than one day
to prepare the case. This, according to counsel, is wholly insufficient to
prepare adequately the defence in a capital case. Deficiencies in the
author's defence are said to be attributable partly to lack of time for the
preparation for the trial, and partly to the lack of experience of one of the
author's two court-appointed lawyers.
3.5 With regard to the issue of domestic remedies, counsel rebuts the State
party's contention that the communication is inadmissible on the ground of
non-exhaustion of domestic remedies on grounds of a presumed right to apply
for constitutional redress to the Supreme (Constitutional) Court. He adds
that this argument is advanced without detailed consideration of the
Constitution. He points out that chapter III of the Jamaican Constitution
deals with individual rights, and section 20(5) deals with the right to a fair
trial. In particular, section 25 makes provision for enforcement;
section 25(2) stipulates that the Supreme Court has jurisdiction to "hear and
determine applications", but adds the qualification that the Court shall not
exercise its jurisdiction if it is satisfied that adequate means of redress
have beejx available under any other law. The author's case is said to fall
within the scope of the qualification of section 25(2) of the Jamaican
Constitution: if it were not covered by this proviso, every convicted
criminal in Jamaica alleging an unfair trial would have the right to pursue
parallel or sequential remedies to the Court of Appeal and the Privy Council,
both under criminal law and under the Constitution.
3.6 Counsel finally notes that the State party has failed to show that legal
aid is available to the author for the purpose of constitutional motions. If
the State party were correct in asserting that a constitutional remedy was
indeed available, at least in theory, it would not be available to the author
in practice because of his lack of financial means and the unavailability of
legal aid. Counsel concludes that a remedy which cannot be pursued in
practice is not an available remedy.
State party' s information and observations,
4.
The State party contends that the communication is inadmissible under
article 5, paragraph 2 (b), of the Optional Protocol. It argues that the
author's rights under article 14 of the Covenant are coterminous with the
fundamental rights guaranteed by section 20 of the Jamaican Constitution,
Accordingly/ under the Constitution, anyone who alleges that a fundamental
right has been, is being or is likely to be infringed in relation to him may
apply to the Supreme (Constitutional) Court for redress. Since the author
failed to take any action to pursue his constitutional remedies in the Supreme
Court, the communication is deemed inadmissible.
Committee's admissibility considerations and decision
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,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.
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