CCPR/C/51/D/471/1991

Barry v. Trinidad and Tobago, Communication No. 471/1992, U.N. Doc.

CCPR/C/51/D/471/1992 (1994).

Distr. RESTRICTED */

CCPR/C/51/D/471/1992

19 July 1994

Original: ENGLISH

HUMAN RIGHTS COMMITTEE

Fifty-first session

DECISIONS

Communication No. 471/1992

Submitted by: Theophilus Barry [represented by counsel]

Alleged victim: The author

State party: Trinidad and Tobago

Date of communication: 29 September 1991 (initial submission)

Documentation references:

Prior decisions:

- Special Rapporteur's combined rule 86/rule 91 decision, transmitted on

4 May 1992 (not issued in document form)

Date of present decision: 18 July 1994

[Annex]

ANNEX

Decision of the Human Rights Committee under the Optional Protocol to the

International Covenant on Civil and Political Rights

- Fifty-first session -

concerning

Communication No. 471/1992

Submitted by: Theophilus Barry

[represented by counsel]

Alleged victim: The author

State party: Trinidad and Tobago

Date of communication: 29 September 1991

The Human Rights Committee, established under article 28 of the International

Covenant on Civil and Political Rights,

Meeting on 18 July 1994,

Adopts the following:

Decision on admissibility

1. The author of the communication is Theophilus Barry a Trinidadian citizen,

currently detained at the State Prison in Port-of-Spain, Trinidad and Tobago.

Although he does not invoke the International Covenant on Civil and Political Rights,

it appears from his submissions that he claims to be a victim of violations by Trinidad

and Tobago of article 14 of the Covenant. He is represented by counsel.

The facts as submitted by the author:

2.1 The author was arrested on 3 April 1980 and charged with the murder of one C.A.

at a recreation club, which had occurred earlier the same day. He was brought before

an examining magistrate on 6 April; the preliminary hearing was held in July 1980.

The author was tried in the Port-of-Spain Assizes Court; on 17 July 1981, he was

found guilty as charged and sentenced to death. The Court of Appeal of Trinidad and

Tobago dismissed his appeal on 8 February 1983. The Judicial Committee of the

Privy Council dismissed his subsequent petition for special leave to appeal in

February 1985.

2.2 In March 1985, the author submitted a petition to the Trinidadian Advisory

Council for Pardons; he did not receive a reply. A warrant for his execution, to take

place on 10 July 1986, was read out to him less than 24 hours before the scheduled

date of execution. His legal aid lawyer in Trinidad and Tobago obtained a stay of

execution and filed a constitutional motion on his behalf; it is not clear whether this

motion has ever been heard. On 4 January 1994, the author was informed that his

death sentence had been commuted to life imprisonment by order of the President of

Trinidad and Tobago, as a result of the findings of the Judicial Committee of the Privy

Council in the case of Earl Pratt and Ivan Morgan v. the Attorney-General of

Jamaica. [ Privy Council Appeal No. 10 of 1993; judgment delivered on 2 November

1993.]

2.3 The case for the prosecution was that, during the night of 2 April 1980, C.A. and

the author had been in the recreation club; C.A. had left the club at about 4:00 a.m.,

but had returned at about 6:00 a.m., and had gone into a separate room. The author,

who was still in the club, was seen to enter this room, together with a woman who

pointed out C.A. to him. The author and the woman then left the club. After

approximately thirty minutes, the author returned to the club, went to the room where

C.A. was now asleep on the floor, and stabbed him in the chest with a knife. The

stabbing was witnessed by one person; several other witnesses testified that when the

author emerged from the room, with a blood-stained knife in his hand, he made

certain remarks from which it could be inferred that he had stabbed C.A. The

prosecution further relied on an incriminating statement allegedly made by the author

to the police in the morning of 3 April 1980. The statement was admitted in evidence

after a voir dire.

2.4 During the trial, the author testified that he had been robbed by C.A., that this had

been witnessed by a woman and that, upon her advice, he had gone to the nearest

police station to report the incident. He had then returned to the club, and told C.A.

that he had reported him to the police, whereupon C.A. attacked him with a knife and

was killed in the ensuing struggle. The author further testified that the investigating

officer had forced him to sign a confession statement under duress. The defense did

not call any witnesses to testify on the author's behalf.

The complaint:

3.1 The author claims that his trial was unfair, in violation of article 14 of the

Covenant. In this context, he states that the attorney initially assigned to him for the

trial did not represent him in the Assizes Court; another lawyer was then assigned to

him. He contends that although he instructed this lawyer, the latter disregarded his

instructions and did not challenge numerous discrepancies in the testimonies of the

prosecution witnesses.

3.2 The author further states that the investigating officer testified in court that he had

charged the author with murder in the morning of 3 April 1980, whereas the result of

the post-mortem examination performed by the forensic expert was not known until

the afternoon of the same day. According to the author, it was illegal to charge him

before the result of thepost-mortem examination was known. Furthermore, he

contends that the person performing the post-mortem examination was not a qualified

pathologist, and that his diagnosis was therefore unreliable. He complains that no

chemistry report (relating to the blood stains or fingerprints on the knife) was

produced in court, nor was the gun produced with which the investigating officer

allegedly threatened and forced him to sign the statement.

3.3 The author submits that the judge should not have allowed the trial to proceed,

because of the discrepancies in the evidence and because it was clear that his attorney

was not properly representing him. He adds that he would like to submit corroborative

evidence, but that he has encountered difficulties, since 1983, to obtain all the relevant

court documents. Numerous requests to obtain these documents from the Office of the

Attorney-General, the Registry of the Assizes Court, the Court of Appeal and his

lawyers went unanswered.

The State party's observations and the author's comments thereon:

4. The State party, in its submission of 27 July 1992, confirms that the author has

exhausted domestic remedies in his criminal case, and adds that a constitutional

motion was filed on his behalf.

5. In subsequent submissions, the author reiterates his complaint that the judicial

authorities in Trinidad and Tobago have failed to provide him with the relevant court

documents for the purpose of his communication to the Human Rights Committee.

Furthermore, by letters of 27 May and 7 July 1993, counsel in London, who

represents the author before the Committee, submits that all her requests to obtain the

court documents from the competent authorities and the author's legal aid lawyers in

Trinidad and Tobago have been unsuccessful; counsel indicates that, without the

documents, she is unable to make representations on Mr. Barry's behalf.

6. Under cover of a note verbale, dated 2 July 1993, the State party forwards to the

Committee the Court of Appeal's written judgment in Theophilus Barry's case.

Issues and proceedings before the Committee:

7.1 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.

7.2 The Committee notes that the State party does not object to the admissibility of

the communication. Nevertheless, it is the Committee's duty to ascertain whether all

the admissibility criteria laid down in the Optional Protocol have been met.

7.3 The Committee considers that the author has failed to substantiate, for purposes of

admissibility, that he was inadequately represented during his trial and that this made

the trial an unfair one. He has not indicated which instructions he wanted his lawyer

to carry out, or on what issues the lawyer failed to cross-examine the prosecution

witnesses. Rather his claims have remained blanket allegations. This part of the

communication is therefore inadmissible under article 2 of the Optional Protocol.7.4

The Committee further observes that the author's other allegations all relate to the

evaluation of facts and evidence by the trial judge. It recalls that it is generally for the

appellate courts of States parties to the Covenant to evaluate the facts and the

evidence in a particular case. It is not, in principle, for the Committee to review the

facts and evidence presented to, and evaluated by, the domestic courts, unless it can

be ascertained that the proceedings were arbitrary, that there were procedural

irregularities amounting to a denial of justice, or that the judge violated his obligation

of impartiality. After consideration of the material placed before it, the Committee

does not find that the trial suffered from such defects. Accordingly, this part of the

communication is inadmissible under article 3 of the Optional Protocol.

8. The Human Rights Committee therefore decides:

(a) that the communication is inadmissible under articles 2 and 3 of the Optional

Protocol;

(b) that this decision shall be transmitted to the State party, to the author and to his

counsel.

[Adopted in English, French and Spanish, the English text being the original version.

Subsequently to be issued also in Arabic, Chinese and Russian as part of the

Committee's annual report to the General Assembly.]

footnotes

* Made public by decision of the Human Rights Committee.