CCPR/C/47/D/362/1989

Communication No. 362/1989, Balkissoon Soogrim v. Trinidad and

Tobago (views adopted on 8 April 1993, forty-seventh session)

Submitted by:

Balkissoon Soogrim

(represented by counsel)

Alleged victim:

The author

State party:

Trinidad and Tobago

Date of communication:

19 March 1989

Date of decision on admissibility: 9 July 1991

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Rights,

Meeting on 8 April 1993,

Having concluded its consideration of communication No. 362/1989,

submitted to the Human Rights Committee by Mr. Balkissoon Soogrim under the

Optional Protocol to the International Covenant on Civil and Political

Rights,

Having taken into account all written information made available to it

by the author of the communication, his counsel and the State party,

Adopts its views under article 5, paragraph 4, of the Optional Protocol.

1.

The author of the communication (dated 19 March 1989) is

Balkissoon Soogrim, a Trinidadian citizen currently awaiting execution at the

State Prison in Port-of-Spain, Trinidad and Tobago. He claims to be the

victim of a violation by Trinidad and Tobago of articles 7 and 9, paragraphs

2, 10 and 14, paragraphs 1 and 3 (g), of the International Covenant on Civil

and Political Rights. He is represented by counsel.

Facts as submitted

2.1 The author was arrested on 7 September 1978 on suspicion of having

murdered, during the night between 6 and 7 September l978, one Henderson

Hendy in a cane field in the County of Caroni. On 11 September 1978, the

Chaguanas Magistrate's Court committed him and his co-defendant, Ramesh

Marahaj, to stand trial before the High Court of Justice in Port-of-Spain. a/

On 6 November 1980, they were convicted of murder. On 5 July 1983, the Court

of Appeal quashed the convictions and ordered a retrial. At the end of the

retrial, on 29 June 1984, the High Court of Justice of Port-of-Spain again

convicted the author and his co-defendant of murder and sentenced them to

death. Their appeal was dismissed by the Court of Appeal on 9 July 1985. A

subsequent petition for special leave to appeal to the Judicial Committee of

the Privy Council was dismissed on 22 May 1986.

2.2 The author submits that in 1986 a constitutional motion to the High

Court of Trinidad and Tobago was filed on his behalf. However, the matter

was adjourned, pending the outcome of two other cases before the Court. He

claims that, regardless of whether this constitutional motion is still

pending, the application of domestic remedies in his case has been

unreasonably prolonged.

The constitutional motion was last scheduled to be heard on 7 January 1991

but was adjourned, apparently sine die.

2.3 The conviction of the author and his co-defendant was based

substantially, if not exclusively, on the evidence produced by the main

prosecution witness, L. S. Her testimony was to the effect that, on the

morning of 6 September 1978, she went to the Couva Magistrate's Court to

attend the hearing of a case in which the author was involved. As the

hearing of the case was adjourned, she and the author left the court together

with a third individual and visited some places of entertainment where they

had drinks. Later that day, they separated from the third person and drove

to the house of Ramesh Marahaj, who joined them. In the evening, they drove

to a snack bar in San Juan, where the author and his co-defendant bought some

drinks; this was apparently corroborated by the cashier of the snack bar.

After leaving, the three of them drove to the deceased's house. She further

testified that the author and his co-defendant invited Henderson Hendy to

join them in having some fun with the woman. She claimed that, although she

was aware of the men's intentions, she was too scared to react. They then

drove to a sugarcane field and there they tried to abuse her. She maintained

that the author hit the deceased in the neck while he was over her; while the

author's co-defendant was holding Mr. Hendy to prevent him from escaping, she

heard the author firing three shots. No bullets or shells were, however,

found when the police searched the field in which, according to her,

Henderson Hendy was killed. She added that they subsequently drove to a

beach; there, the author allegedly threw the murder weapon, a cutlass, into

the sea and hid a pair of trousers which belonged to the deceased in nearby

bushes. A subsequent search of the beach by the police produced the trousers

but not the cutlass. The woman added that the author and his co-defendant

threatened her with death if she were to report to the police. During

cross-examination, she admitted that she decided to report to the police only

after her father had told her that the police were looking for her. She

voluntarily presented herself to the police station, where she was cautioned

and held in custody for a few days.

2.4 The author denies any involvement in the crime. At the trial he stated

that, on the morning of 6 September 1978, he went to the Couva Magistrate's

Court with his wife, his mother and his brother, and that, after leaving the

court at 10 a.m., he went to see his doctor. The latter treated him and gave

him a medical certificate, which he tendered as evidence. He further asserts

that after he left the doctor's cabinet, he returned home for the remainder

of the day.

Complaint

3.1 The author claims that the principal prosecution witness, L. S., was an

accomplice or abettor, and that the trial judge failed to properly instruct

the jury on the corroboration of her evidence. Moreover, the author

maintains that the Court of Appeal erred in holding that there was no need

for the trial judge to give a warning as to the corroboration. In this

connection, it is submitted that the issue of appropriate instructions was

all the more important because of the alleged inconsistencies in the

prosecution witnesses' testimony during the second trial.

3.2 As to his treatment during detention, the author claims that following

his arrest on 7 September 1978, he was taken to a police station, where he

was subjected to beatings and physical abuse and forced to sign a statement

placing him on the scene of the murder. On 11 September, he complained about

this treatment before the Magistrate's Court and a medical examination was

ordered. The examination apparently was inconclusive, showing minor injuries

that also could have been inflicted by the author himself. The issue was

also raised before the court of first instance and on appeal. Some passages

of the summing-up by the judge presiding over the retrial describe the nature

of the psychological pressure and degrading treatment to which the author was

allegedly subjected to in custody.

3.3 The author further claims that he was not informed of the charges

against him until three days after his arrest. He does not, however, clarify

this point.

3.4 The author further complains of inhuman and degrading treatment

allegedly suffered since February 1987 in the State Prison of Port-of-Spain.

On 2 February 1987 and again on 21 September 1988, he was allegedly beaten by

prison warders and, on another occasion, left naked in a cold cell for two

weeks. His complaints to the prison authorities were not followed up. He

identifies the warders and prison officials whom he holds responsible for his

continuously deteriorating state of health. In this context, he indicates

that the virtually complete lack of exercise and sunlight in the prison has

caused arthritis in his joints: furthermore, his eyesight has deteriorated

during more than 10 years on death row, so that the prison doctor referred

him to an eye clinic. The Commissioner of Prisons, however, informed him

that there was no money for such medical treatment and that in any case he

was in prison to die. The author further claims that visits from his family

have been frequently delayed or restricted to very short periods. All this,

it is submitted, constitutes a clear infringement of the United Nations

Standard Minimum Rules for the Treatment of Prisoners.

State party's observations

4.

As to the admissibility of the communication, the State party refers to

the author's statement that a constitutional motion has been filed on his

behalf and indicates that "the Ministry of Justice and National Security is

awaiting confirmation from the Registrar of the Supreme Court with respect to

the filing of such a motion".

Committee's decision on admissibility

5.1 During its forty-second session the Committee considered the

admissibility of the communication. It considered that the author's claim

relating to the court's evaluation of the evidence and the judge's

instructions to the jury pertained to facts and evidence which are in

principle for appellate courts of States parties to the Covenant to evaluate;

this part of the communication was therefore declared inadmissible. The

Committee further considered that the author's claim under article 9 of the

Covenant had not been substantiated for purposes of admissibility.

5.2 As to the author's claims under articles 7, 10, and 14, paragraph 3 (g),

of the Covenant, the Committee considered that the author had exhausted

domestic remedies available to him. On 9 July 1991, the Committee,

accordingly, declared the communication admissible in as much as it might

raise issues under articles 7, 10 and 14, paragraph 3 (g), of the Covenant.

Review of admissibility

6.

In its submission dated 11 February 1992, the State party argues that

the author's claim that he was forced to sign an incriminating statement

should be deemed inadmissible, since it pertains to facts and evidence, which

are generally for the appellate courts of States parties to evaluate, and not

for the Committee. It further submits that, on 27 September 1991, the author

was granted legal aid in order to bring a constitutional motion against his

death sentence; this motion has yet to be heard.

7.

In his comments on the State party's submission, dated 5 March 1992, the

author argues that the constitutional remedy has been unreasonably prolonged

within the meaning of article 5, paragraph 2, of the Optional Protocol.

8.

The Committee observes that article 5, paragraph 2 (b), of the Optional

Protocol precludes the Committee from considering a communication if the

author has failed to exhaust domestic remedies. The Committee notes that, in

respect to his claim under article 14 of the Covenant, the author has

obtained the services of a legal aid lawyer and is pursuing constitutional

remedies. The Committee further observes that decisions of the High Court in

two other cases have resulted in the release of the applicants. In the

particular circumstances of the instant case, the Committee considers that

the constitutional motion filed by the author cannot be deemed to be prima

facie ineffective and that it is a remedy within the meaning of article 5,

paragraph 2 (b), of the Optional Protocol.

9.

The Committee, therefore, reverses its decision on admissibility and

decides that this part of the communication, concerning article 14 of the

Covenant, is inadmissible under article 5, paragraph 2 (b), of the Optional

Protocol.

Examination of the merits

10. In the light of the above, the Committee decides to proceed with its

examination of the merits of the communication in so far as it relates to

allegations under articles 7 and 10 of the Covenant.

11.1 In its submissions, dated 11 February and 27 July 1992, the State party

argues that the author's allegations are unsubstantiated. It encloses a

report by the Commissioner of Prisons of Trinidad and Tobago, whom the State

party had requested to investigate the allegations.

11.2 According to the report, dated 20 November 1991, the author was charged

with disciplinary offences on 2 February 1987 and 21 September 1988. The

report states that reasonable force had to be applied by prison officers to

control the author. In a supplementary report it is submitted that the

author was reprimanded on two of the five charges against him; three charges

were dismissed. In the report, it is denied that the author was left naked

in a cell for two weeks. It is submitted that the author's complaints have

in the past been brought to the attention of the Inspector of Prisons, the

Ministry of Justice and National Security and the Ombudsman.

11.3 With regard to prison conditions, it is stated that Prison Regulations

afford condemned prisoners one hour of open air exercise per day. According

to the report, the prison medical records, although revealing complaints

about minor pains about the author's joints, confirm no history of chronic

arthritis. In a memorandum, dated 2 June 1992, the Prison Medical Officer

states that the author has a six-year history of hypertension, but that his

physical and psychiatric state of health is normal, except for high blood

pressure.

11.4 As regards the author's complaints about the deteriorating sight in his

one eye, it is stated that the author has been treated at the Eye Clinic of

the Port-of-Spain General Hospital; a pair of spectacles was issued to him,

which he has been using for the past two years. Follow-up treatment has

recently been recommended by the Medical Officer and an appointment has been

made for 15 October 1992.

12.1 In his comments on the State party's submission, the author argues that

the Commissioner's report does not reflect the truth, but tries to cover up

the human rights abuses going on in the prison.

12.2 The author argues that, even though the Prison Regulations allow one

hour of open air exercise per day, in practice he is only allowed at most one

hour per week, due to a shortage of prison staff. He maintains that he is

suffering from arthritis, and contends that the doctor has diagnosed it as

such and has prescribed the use of the medicine Indosid. The author concedes

that spectacles were issued to him several years ago, but claims that his

family had to pay for them; he further claims that the spectacles are no

longer of use, because of the deterioration of his eyesight.

12.3 With regard to the disciplinary charges, the author argues that they

have been fabricated to cover up the unlawful use of force against him. He

submits that all charges against him were dismissed. The author concedes

that the Minister of Justice and National Security had ordered investigations

of his complaints, but he claims that the prison authorities compiled a false

report, so that no action was taken. He maintains that he was left naked in

a cell for two weeks, and he states that several witnesses would be able to

confirm his allegations.

13.1 The Committee has considered the communication in the light of all the

information made available to it by the parties, as required under article 5,

paragraph 1, of the Optional Protocol.

13.2 As to the substance of the communication, two issues are before the

Committee: (a) whether the author was a victim of inhuman or degrading

treatment, because on two occasions, he was allegedly beaten by prison

warders and on one occasion left naked in a cell for two weeks; and (b)

whether the conditions of his detention constitute a violation of article 10

of the Covenant.

13.3 In order to decide on these issues, the Committee must consider the

arguments put forward by the author and the State party and assess their

respective merits and intrinsic credibility. Concerning the beatings he

allegedly received, Mr. Soogrim has given precise details, identified those

he holds responsible and affirmed that he lodged complaints after being ill-

treated. In this regard, the State party has not really issued any denial.

It has admitted only that force was used against Mr. Soogrim although within

reasonable limits and in order to control him, this having occurred on the

dates referred to by the author of the communication. The State party

furthermore recognizes that the author did report the facts he alleges and

that his complaints were brought to the attention of the Inspector of

Prisons, the Ministry of Justice and National Security and the Ombudsman. In

addition, the explanations given by the author and the State party regarding

the disciplinary charges reportedly filed against him are contradictory, but

nevertheless concur in that some of them were dismissed by the State party.

The dismissal of these charges, however, casts doubt on the facts as

presented in the report dated 20 November 1991. Lastly, concerning the

allegation that the author was left naked in his cell for two weeks, the

Committee has no more specific information available to it than the claims of

the author and the denials of the State party.

13.4 With regard to the author's allegations that he has not received the

necessary medical care for his state of health and has been deprived of open-

air exercise, the information communicated by the State party shows, with

reference to his medical record, that he has been given medical treatment

and, in particular, that his eyesight has been corrected and is checked

regularly at the Port-of-Spain General Hospital. As to the hour of open-air

exercise per day allowed by the prison regulations, there is no basis, apart

from Mr. Soogrim's allegations, on which to affirm that he is being regularly

deprived of such exercise.

14. 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 it disclose a violation of

articles 7 and, consequently, article 10, paragraph 1, of the International

Covenant on Civil and Political Rights in so far as the author was beaten by

prison warders on several occasions.

15. The Committee is of the view that Mr. Balkissoon Soogrim is entitled to

a remedy, including appropriate compensation. The State party is under an

obligation to ensure that similar violations do not occur in the future.

16. The Committee wishes to receive information, within 90 days, on any

relevant measures taken by the State party in respect of the Committee's

views.

[Done in English, French and Spanish, the English and French texts being the

original versions.]

Notes

a/

Mr. Marahaj's case is also under consideration by the Human Rights

Committee as communication No. 384/1989.