CCPR/C/39/D/232/1987

(views adopted on 20 July 1990, at the thirty-ninth seasion)

Submitted by: Daniel Pinto (represented by counsel)

Alleged victim: The author

State party concerned: Trinided and Tobago

Date of communication: undated (received in June 1987)

Data of decision on admissibility: 18 July 1589

The. Hyman Rights Committee, established under article 28 of the International

Covenant on Civil and Political Rights,

Meating on 20 July 1990,

its consideration of communication No. 232/1987, sub ritted to

the Committee by Mr. Daniel Pinto uader the Optional Protocol to the International

Covenant on Civil and Political Rights,

into acccunt all the information made available to it by the

author of the communication and by the State party,

Adopts the following:

Views under article 5. paragrayh 4, of the Optional Protocol*

1. The author of the communication (initial undated letter, received in

June 1987, and subsequent correspondence) is Daniel Pinta, a citisen of Trinidad

and Tobago currently awaiting execution at the State Prison of Port-of-Spaiu,

Trinidad. He claims to be the victim of a violation of his human rights by

Trinidad and Tobago. He is represented by counsel.

2.1 The author, who claims to be innocent, was arrested at 1.20 a.m. on

18 February 1982 in Arima, and charged with the murdor, on the previous day, of one

Mitchell Gonsales. His trial took place in the Port-of-Spain Assises Court, from

3 to 14 June 1985; he was fuund guilty and sentenced to death on 14 June 19865. On

18 July 1986, the Court of Appeal dismissed his appeal; it produced 4 reasoned

judgment on 8 December 1986.

2.2 The author states that on the night of 17 February 1982 he was assaulted by

five men and severely beaten. In the course of the struggle, one of the attackers

attempted to etab him but accidentally hit another attacker, who subsequently

died. The prosecution's contention was that on the night of the crime the author

had approached five men, including Mr. Gonsales, who were sitting together on a

bench outside a bar in Arima and that Mr. Pinto had told them that he had learned

that two of them had made deprecatory remarks about him and sought to ascertain

f An individual opinion by Mr. Bertil Wennergren ia appended.

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what the two, including the deceased, had said. The deceased sought in turn, to

ascertain, what these remarks pertained to. He then remarked to tho others that

Mr. Pinto seemed to be under the influence of alcohol, upon which the author was

said to have lashed out at Mr. Gonsales with a knife, stabbing him twice.

Mr. Gonsales escaped but collapsed about 200 feet from the scene.

2.3 The author alleges that he was denied a fair trial, siace the four men who had

allegedly attacked him acted as the prosecution's witnesses against him.

Furthermore, the legal aid attorney assigned to his case allegedly defended him

poorly: according to the author, this lawyer never consulted with him prior to the

trial and remained passive during most of it, without taking any notes or making

any statements or objections. The author aiso alleges that the tria) transcript

was tampered with after conviction. Throughout the proceedings, the author

maintained his innocence. Upon his conviction, his counsel appealed the sentence,

among others, on the following grounds:

(a) that the trial judge failed to direct the jucy adequately on the issue of

self-defence)

(b) that the trial judge misdirected the jury by instructing the jurors that

the issue of nansiaughter did not arise for theic consideration although there was

in fast evidence which, if accepted, could have supported such a verdict as a

result of provocation; this misdirection, according to counsel, constituted a

"grave miscarriage of justice";

(c) that the trial judge failed to properly instruct the jury on the

ciscumstantial nature of the evidence on which the prosecution relied, and that he

did not properly warn the jury that it was dangerous to accept such evidence

because it could have been "fabricated" s) as to cast suspicion on the accused.

3. By decision of 22 July 1987, the Human Rights Committee transmitted the

communication, for information, to the State party and requested it, under rule 86

of the rules of procedure, not to carry out the death sentence against the author

before it had had the opportunity to consider further the question of the

admissibility of the communication. The author was requested, under rule 91 of the

rules of procedure, to provide a number of clarifications about the circumstances

of his trial and his appeal.

4.1 In hie reply, dated 18 August 1987, to the Committee's request for

clarifications, the author indicated that an English law firm had agreed to

represent him for purposes of a petition for special leave to appeal to the

Judicial Committee of the Privy Council.

4.2 In a further submission, the author complained about irregularities in the

administration of justice in Trinidad. He maintained that he sought special leave

to appeal to the Judicial Committee of the Privy Counsil in 1986, but two years

later, the Registry of the Privy Council had still not rcceived the necessary

documents and transcripts from the Court of Appeal in Trinidad. The author quotes

from a letter to him by his representatives in London:

“We have made enquiries at the Privy Council regarding your appeal and we have

not yet had the fina: order of leave to appeal from the Supreme Court of

Trinidad and Tobago. We understand thet letters have been written twice to

the Supreme Court, requesting the same, as this is holding up progress. We

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have written to our agent in Trinidad, ..., and requested him to look into the

matter urgently on our behalf. ..."

5. By decision of 22 March 1988, the Working Group of the Human Rights Committee

reiterated the Committee's request to the State party, under rule 86 of the rules

of procedure, that it not carry out the death sentence agaizat the author while his

communication is under examination by the Committee. It further requested the

State party, under rule 91 of the rules of procedure, to provide information and

observations relevant to the question of the admissibility of the communication.

In thie context the State party was asked to provide the Committee with the texts

of the written judgments in the case and to indicate whether the Judicial Committee

of the Privy Council had heard the petition for special leave to appeal and, if so,

with what result.

6. The deadline for the State party's submission under rule 91 of the rules of

procedure expired on 27 June 1988. In spite of two reminders sent to the State

party on 16 September and 22 November 1988, no submission has been received.

7. By letter dated 13 June 1966, the author indicated that hia application for

leave to appeal to the Judicial Committee of the Privy Council was dismissed on

26 May 1988. By further letter dated 14 December 1988, he stated that all his

submissions to the judicial authorities of Trinidad, including the Attorney

General's Office, the Ministry of National Security and the Minister of External

Affairs, have remained unanswered.

8, After the dismissal of his petition for special leave to appeal by the

Judicial Committee of the Privy Council, the author seat a petition to the Mercy

Committee, without, however, obtaining a reply.

9.1 Refore considering any claims contained in a communication, the Human Rights

Committee must, in accordance with rules 87 of ite rules of procedure, decide

whether or not it is admissible under the Optional Protocol to the Covenant. The

Committee addressed the question of admissibility at its thirty-sixth session in

July 1989.

9.2 The Committee ascertained, as it is required to do under article 5,

paragraph 2 (a), of the Optional Protocol, that the same matter is not being

examined under another procedure of international investigation or settlement.

9.3 The Committee noted with concern the absence of any co-operation from the

State party on the matter under consideration. In respect of the requirement of

exhaustion of domestic remedies, the State party had not made any submission

relevant to the question of the admissibility of the communication. The Committee

observed thet the author's indication that his petition for special leave to appeal

to the Judicial Committee of the Privy Council had been dismissaf on 26 May 1988

had also remained uncontested. On the basis of the information befere it, the

Committee found that there were no further effective domestic remedies which the

author could still pursue. It therefore concluded that the requirements of

article 5, paragraph 2 (b), had been met.

9.4 On 18 July 1989, the Human Rights Committee therefore declared the

communication admissible.

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10. The deadline for the State party's explanations and statements on tho merite

of the communication expired on 17 February 1990. No submission was received

despite two reminders addressed to it on 20 February and 29 March 1990. Under

cover of a note of 12 March 1990, the State party did, howaver, forward copies of

the court documeats in the case, including the notes of evidence, the summing~up of

the trial judge, the application for leave to appeal against conviction and

sentence anc the judgment of the Court of Appeal, which the Committee had requested

two years earlier to facilitate consideration of the question of the admissibility

of the communication.

11.1 In numerous submissions received after the Committee's decision on

admissibility, the authur provides further information about his case. Three main

issues may be drawn from these submissions. He first reiterates his allegations of

unfair trial and the alleged inadequacy of the judge's instructions to the jury.

11.2 Secondly, the author reaffirms that his representation before the trial court

avd the Court of Appeal was inadequate. Mr. I. K., who represented him before the

Port~-of-Spain Acsises Court, ie said to have displayed no interest in the case and

to have remained passive throughout the trial failing to challenge pieces of

evidence presonted by the prosecution. He is aleo accused of "conflict of

interest" and “hidden agendas”. Allegedly, the lawyer failed to raise the point

that throughout the six days the author spent in police custody before being

brought before an examining magistrate, he was not properly informed of his

rights. Furthermore, the author claims that counsel did not raise the point that

subsequent to his apprehension early in the morning of 18 February 19862, he was

escorted to the hospital of Arima, where he was treated for injuries allegedly

sustained at the hand of his attackers. According to the author, he never saw or

approved the grounds of appeal and never }.ad an opportunity to discuss the

proparation of the appeal with I. K. In this context, he notes that prior to the

hearing of the appeai, he had informed the Registrar of the Court of Appeal that an

eminent lawyer from the United Kingdom would repregent him) the Court of Appeal,

however, completely ignored his letters and reappointed I. K. as his representative

for the appeal, although all the formalities with the English lawyer had been

settled. Finally, the author notes that his former representative is actively

involved in Government politics, where he serves, among other duties, on the Crime

Commission; during the spring of 1989 he is said to have made several statements

calling for the speedy execution of prisoners under the sentence of death.

11.3. Thirdly, the author complains about the conditions of his detention on death

row. Thus, he claims that, aithough he was given glasses after failing an eye

test, his eye-sight is continuously deteriorating. He further claims that he has

been in need of urgent dental care for several years, but that the prison

authorities have informed him repeatedly that no funds were available for this

purpose. More generally, the author affirme that it is difficult to obtain any

medical treatment on death row, and that whoever speaks out about this situation is

liable to administrative measures or harassment from the prison authorities.

12.1 The Human Rights Comnittee has considered the present communication in the

light of the information provided by the parties, as provided for in article 5,

paragraph 1, of the Optional Protocol.

12.2 In formulating its views, the Human Rights Committee notes with concern the

failure of the State party to co-operate with it. Apart from furnishing copies of

court documents (see para. 10 above), no submission has been received from the

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State party. Article 4, paragraph 2, of the Optional Protocol enjoins a State

Party to investigate in good faith all the allegationcs of violations of the

Covenant made ageinst it and its judicial authorities, and to forward to the

Committee all the information available to it. The Committee notes with concern

that in spite of two reminders, no explanations or statements on the substance of

the present communication have been received from the State party. In the

circumstances, due weight must be given to the author's allegations.

12.3 The Committee notes that part of the author's claims relate to the alleged

inadequacy of the judge's evaluation of the evidence in the case, ae well as the

alleged prejudicial nature of his summing-up of the case to the jury. It reaffirms

that while article 14 of the Covenant guarantees the right to a fair trial, it is

for the appellate courts of States parties to ths Covenant to evaluate 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, unlese it.

can be ascertained that the instructions to the jury were clearly arbitrary or

amounted to a denial of justice. In the Committee's opinion, the judge's

instructions to the jury must meet particularly high standards as to their |

thoroughness and impartiality in cases in which a capital sentence may be

pronounced on the accused; this applies, a fortiori, to cases in which the accused

pleads legitimate self-defence.

12.4 After careful consideration of the material placed before it, the Committee

coucludes that the judge's iustructions to the jury on 14 June 1985 were neither

arbitrary nor amounted to a denial of justice. As the judgement of the Court of

Appeala states, the trial judge put the respective versions of the prosecution and

the defence fully and fairly to the jury. The Committee therefore finds that in

respect of the evaluation of evidence by the trial court there has been no

violation of article 14.

12.5 Concerning the issue of the author's representation before the Court of

Appeal of Trinidad and Tobago, the Committee reiterates that it is ariomatic that

legal representation must be made available in capital cases. a/ This does not

only apply to an accused person at the trial in the court of first instance, but

also in appellate proceedings. In the instant case, it is uncontested that counsel

was assigned to the author for the appeal. What is at issue is whether the author

had a right to object to the choice of his court-appointed attorney, who had also,

in his opinion, inadequately represented him at the trial of first instance. It is

uncontested that the author never saw or approved the grounds of appeal filed on

his behalf, and that he was uever provided with au opportunity to consult with his

counsel on the preparation of the appeal. From the material before the Committee,

it can be clearly inferred that the author did not wish his counsel to represent

him beyond the firat instance; this is corroborated by the fact, which has remained

uncontested, that he had made the necessary arrangements to have another lawyer

represent him before the Court of Appeal. In the circumstances, and beariag in

mind that this is a case involving the death penalty, the State party should have

accepted the author's arrangements for another attorney to regresent him for

purposes of the appeal, even if this would have entailed an adjournment of the

proceedings. The Committee is of the opinion that legal assistance to the accused

in a capital case must be provided in ways that adequately and effectively eusure

justice. This was not done in the author's case. To the extent that the author

wes denied effective representation during the appeal proceedings, the requirements

of article 14, paragraph 3 (a), have not been met.

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12.6 The Comittee 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 nu 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, since the final sentence of death was passed

without having met the requirements for a fair trial set forth in article 14, it

must be concluded unat the right protected by article 6 of the Covenant has been

violated.

12.7 As to the author's sllegations that he has been denied adsquate medical care

during his detention on death row, in particular in respect of ophthalmologic and

dental treatment, the Committee notes, firstly, that these allegations were made at

a late stage, after the communication was declared admissible, as it atood on

18 July 1989, and, secondly, that these additional allegations have not been

sufficiently corroborated, for instance by medical certificates, to justify a

finding of a violation of article 10, paragraph 1, of the Covenant. The Committee

reaffirms, however, that the obligation to treat individuals deprived of their

liberty with respect for the inherent dignity of the human person encompasses the

provision of adequate medical care during detention, and that this obligation,

obviously, extends to persons under the sentence of death.

13.1 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, as found by the Committee, disclose a violation of

articles 6 and 14, paragraph 3 (da), of the Covenant.

13.2 The Committee observes that, in capital punishment cases, the duty of States

parties to observe rigorously ali the guarantees for a fair trial set out in

article 14 of the Covenant is even more imperative. The Committee is of the view

that Mr. Daniel Pinto, a victim of a violation of articles 6 and 14,

paragraph 3 (ad), ie entitled to remedy entailing his release.

14. The Committee would wish to raceive information on any relevant measures taken

by the State purty in respect of the Committee's views.

(Done in English, French, Russian and Spanish, the English text being the original

version. ]

Novea

g/ See Communication No. 223/1987 (Rebingon vy. Jamaica), views adopted on

30 March 1989, para. 10.3.

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APPENDIX

The Vienna Convention on the Law of Treaties states, inter alis, that a treaty

provision shall be interpreted in accordance with the ordinary meaning to be given

to its terms, placed in their context and in the light of the treaty's object and

purpose. The object and purpose of article 6, paragraph 2, of the Covenant is

obvious. It is to circumscribe the imposition of death sentences. The travaux

characterize it as a yardstick to which national law authorising the

imposition of the death sentence must conform. This yardstick consists of a number

of prerequisites, some of which reflect guarantees also laid down in other articles

of the Covenant. The prerequisites are: (a) “only for the most serious crimes";

(>) "only in accordance with the law in force at the time of the commission of the

crime", of. article 15, paragraph 1) (c) “only pursuant to a finai judgment

rendered by a competent court", cf. article 14, paragreph 1. The same requirements

are to be found in article 4 of the American Convention on Human Righta, which

reads: the death penalty "may be imposed only for the most serious crimes and

pursuant to a final judgment rendered by a competent court and in accordance with a

law establishing such punishment, enacted prior to the commission of the crime."

Article 2 of the European Convention for the Protection of Human Rights and

Fundamental Freedoms is lsss complete. It merely states that “no one shall be

deprived of his life intentionally save in the execution of a sentence of a court

following conviction of a crime for which this penalty is provided by law". Thus

the Convention provision focuses more than similar provisions on the purpose to

protect an individual from any intentional deprivation of his life by State

organs. Article 6, paragraph 2, of the Covenant adds a prerequisite that is not

included in either the European or the American Conventions, namely (ad) “not

contrary to the provisions of the present Covenant and to the Convention on the

Prevention and Punishment of the Crime of Genocide". The latter Convention

includes provisions that prohibit any killing - i.e. also execution pursuant to a

death sentence - that can be subsumed under the term genocide. Article 6,

paragraph 5, of the Covenant prohibits in addition the imposition of a sentence of

death for crimes committed by persons below 18 years of age. Thus the prerequisite

(4) evidently in the first place aims at those provisions in the Covenant and the

Genocide Convention dealing with the imposition and execution of death sentences.

It is, however, worded in such general terms that it might be understood as

applying to other provisions of the Covenant as well, and not merely to provisions

which would apply to the imposition itself of a death sentence, for instauce

article 26. The Committee has in this case interpreted it that way and found that

a violation of the provisions in article 14 about a fair trial has to be looked

upon as a violution also of article 6, paxagraph 2, when the trial ended with a

Geath sentence. I cannot find grounds for such an interpretation for the following

reason: in the context where this prerequisite has heen placed - i.e. in

paragraph 2 and not in paragraph 1 - and in the light of the object and purpose of

that paragraph, it is difficult to assume that it should be given an independent

significance apart from its specific purpose (paragraph 5 and article 26

observance) and that it adds to what already is made clear by article 6,

paragraph 5. The travaux préparatoires do not provide any useful guidance;

moreover, any State power to investigate a crime that may lead to a death sentence,

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indict a person for such a crime and conduct a trial againat him ie outside the

focal point of article 6, paragraph 2, that deals only with the power to sentence

en individual to death. The exercise of these related powers will then instead

fall under paragraph 1, which provides that no one shull be arbitrarily deprived of

his life, a term which according to the travaux préparatoiras was preferred to

“without due process of law". In my cpinion violatious of the safequards for a

fair trial in article 14 in a capital punishment case cannot be deemed to also

constitute violations of article 6, paragraph 2. However, I agree with the

Committee that unfairness in a capital case is of utmost gravity. When someone's

life is at stake, all possible precautions and safeguards must come into full

Play. A breach of article 14 in such u case therefore constitutes a particularly

grave violation. But, it cannot, even for that reason, be deemed to constitute a

violation of article 6, paragraph 2. It is only - and only then - if the trial

does not display the characteristics of a real trial but rather those of a mock

trial, lacking the paramount characteristics of due process of law, that a

violation of article 6 of the Covenant berides a violation of article 14 of the

Covenant may arise, namely a violation of article 6, “aragraph 1. The trial in

thie case undoubtedly was a very unsatisfactory cne, but the information available

does not, in my view, justify the conclusion that the elements of unfa rness were

such that the trial may be looked upon as arbitrary. I note in this connection

that the Judicial Committee of the Privy Council received a petition from the

author for special leave to appeal because of the trial deficiencies, but that the

Judicial Committee did not grant leave. My conclusion therefore is that, just as

under the American and European Conventions, violations of the fair trial

safeguards cannot as such at the same time be deemed to be violations of provisions

concerning the imposition of death sentences.

Bertil WENNERGREN

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