CCPR/C/61/D/555/1993

NATIONS CCPR

International Covenant Distr.

.. RESTRICTED*

on Civil

and Political Rights CCPR/C/61/D/555/1993

14 January 1998

Original: ENGLISH

HUMAN RIGHTS COMMITTEE

Sixty-first session

20 October ~- 7 November 1997

VIEWS

Communication No. 555/1993

Submitted by: Ramcharan Bickaroo

[represented by Interights, London]

Victim: The author

State party: Trinidad and Tobago

Date of communication: 5 October 1993 (initial submission)

Date of adoption of Views: 29 October 1997

On 29 October 1997, the Human Rights Committee adopted its Views under

article 5, paragraph 4, of the Optional Protocol in respect of communication

No. 555/1993. The text of the Views is appended to the present document.

[ANNEX ]

*

Made public by decision of the Human Rights Committee.

VWS555 cb

GE .98-15088

CCPR/C/61/D/555/1993

Page 2

ANNEX“

Views of the Human Rights Committee under article 5, paragraph 4,

of the Optional Protocol to the International Covenant

on Civil and Political Rights

- Sixty-first session -

concerning

Communication No. 555/1993"* ***

Submitted by: Ramcharan Bickaroo

[represented by Interights, London]

Victim: The author

State party: Trinidad and Tobago

Date of communication: S October 1993 (initial submission)

Date of decision on admissibility: 12 October 1995

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Rights,

Meeting on 29 October 1997,

Having concluded its consideration of communication No. 555/1993

submitted to the Human Rights Committee on behalf of Mr. Ramcharan Bickaroo

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 the following:

*

The following members of the Committee participated in the examination

of the present communication: Mr. Nisuke Ando, Mr. Prafullachandra N.

Bhagwati, Mr. Thomas Buergenthal, Ms. Christine Chanet, Lord Colville,

Mr. Omran El Shafei, Ms. Elizabeth Evatt, Ms. Pilar Gaitan de Pombo,

Mr. Eckart Klein, Mr. David Kretzmer, Ms. Cecilia Medina Quiroga, Mr. Fausto

Pocar, Mr. Julio Prado Vallejo, Mr. Martin Scheinin, Mr. Maxwell Yalden and

Mr. Abdallah Zakhia.

“ Pursuant to rule 85 of the rules of procedure, Committee member

Rajsoomer Lallah did not participate in the adoption of the Views.

a The text of an individual opinion signed by five Committee members is

appended to the present document.

CCPR/C/61/D/555/1993

Page 3

Views under article 5, paragraph 4, of the Optional Protocol

1. The author of the communication is Ramcharan Bickaroo, a Trinidadian

citizen who, at the time of submission of his complaint, was awaiting

execution at the State Prison in Port~of-Spain, Trinidad and Tobago. He claims

to be a victim of violations by Trinidad of articles 7 and 10, paragraph 1,

of the International Covenant on Civil and Political Rights. On

31 December 1993, his death sentence was commuted to life imprisonment by the

President of Trinidad and Tobago, in accordance with the Guidelines laid down

in the judgment of the Judicial Committee of the Privy Council of

2 November 1993 in the case of Pratt and Morgan v. Attorney General of

Jamaica. He is represented by Interights, a London-based organization.

The facts as submitted by the author

2.1 The author was arrested in 1975 and charged with murder. No information

is provided about the circumstances or facts of the crime with which he was

charged. He was tried for murder in the Port-of-Spain Assizes Court, found

guilty as charged and sentenced to death on 5 April 1978. His appeal was

dismissed by the Court of Appeal of Trinidad and Tobago on 21 June 1979.

2.2 On an unspecified date after the dismissal of the appeal, the author was

informed by his counsel that there were no grounds on which a further appeal

to the Judicial Committee of the Privy Council could be argued with any

prospect of success. On 30 September 1993', a warrant was issued for the

execution of the author on 5 October 1993. A constitutional motion was filed

on his behalf in the High Court of Trinidad and Tobago, and a stay of

execution was granted during the night of 4 to 5 October 1993.

2.3 The author argues that he has exhausted domestic remedies within the

meaning of the Optional Protocol, and that the fact that a constitutional

motion was filed on his behalf in the High Court of Trinidad and Tobago should

not preclude his recourse to the Human Rights Committee. He contends that

because of the very nature of his situation, an individual on death row whose

warrant of execution has been read will necessarily invoke all available

procedures, possibly until the scheduled time of execution.

2.4 Counsel adds that to require that all last minute procedures be

exhausted before allowing a recourse to the Human Rights Committee would imply

that the applicant either wait until a moment dangerously close in time to his

execution, or that he refrain from invoking all potentially available domestic

remedies. It is submitted that neither option is within the letter or the

spirit of the Optional Protocol.

2 The date does not appear clearly in the communication; it appears,

however, that the warrant was issued on the same day as the warrant for the

execution of Robinson LaVende (see communication No. 554/19933).

CCPR/C/61/D/555/1993

Page 4

The complaint

3.1 The author, who was confined to the death row section of the State

Prison from the time of his conviction in April 1978 to 31 December 1993, i.e.

close to 16 years, alleges a violation of article 7 of the Covenant, on the

ground that the length of time spent on death row amounts to cruel, inhuman

and degrading treatment. He further argues that the period of time spent on

death row runs counter to his right, under article 10, paragraph 1, to be

treated with humanity and respect for the inherent dignity of his person.

3.2 It is argued that the execution of the sentence after so many years on

death row would amount to a violation of the above-mentioned provisions. In

Support of his argument, counsel refers to recent jurisprudence, inter alia

a judgment of the Supreme Court of Zimbabwe’, the judgment of the European

Court of Human Rights in the case of Soering®, and the arguments of counsel

for the applicants in the case of Pratt and Morgan v. Attorney-General of

Jamaica.

Committee’s admissibility decision

4.1 During its 55th session, the Committee considered the admissibility of

the communication. It noted that no submission under rule 91 had been received

from the State party, in spite of a reminder addressed to it on

6 December 1994. The State party had merely forwarded a list with the names

of individuals whose death sentences were commuted following the judgment of

the Judicial Committee of the Privy Council in the case of Pratt and Morgan;

the author’s name had been included in that list. While welcoming this

information, the Committee noted that the author’s claims under the Covenant

had not been made moot by the commutation of the death sentence. As the State

party had failed to provide information under rule 91, due weight had to be

given to the author’s allegations, to the extent that they had been

sufficiently substantiated.

4.2 As to the claims under articles 7 and 10, paragraph 1, the Committee

observed that the State party had itself commuted the author’s death sentence,

SO as to comply with the guidelines formulated by the Judicial Committee of

the Privy Council in the case of Pratt and Morgan v. Attorney-General. The

State party had not informed the Committee of the existence of any further

remedies in respect of these claims; indeed, its silence in this respect

constituted an admission that no such remedies existed.

4.3 On 12 October 1995, the Committee declared the communication admissible

in so far as it appeared to raise issues under articles 7 and 10, paragraph 1,

of the Covenant.

2 Supreme Court of Zimbabwe, Judgment No. S.C. 73/93 of June 1993.

3 Soering v. United Kingdom, 11 EHRR 439 (1989).

CCPR/C/61/D/555/1993

Page 5

Examination of the merits

5.1 The State party’s deadline for the submission of information and

observations under article 4, paragraph 2, of the Optional Protocol expired

on 16 May 1996. No submission was received from the State party, in spite of

a reminder addressed to it on 11 March 1997. The Committee regrets the lack

of cooperation on the part of the State party. It has examined the present

communication in the light of all the information made available by the

parties, as provided for in article 5, paragraph 1, of the Optional Protoccl.

5.2 The Committee must determine whether the length of the author’s

detention on death row - between April 1978 and December 1993 - amounts to a

violation of articles 7 and 10 of the Covenant. Counsel alleges a violation

of these provisions merely by reference to the length of detention the author

was confined to death row at the State Prison in Port-of-Spain. The length of

detention on death row in this case is unprecedented and a matter of serious

concern. However, it remains the jurisprudence of the Committee that the

length of detention on death row does not, per se, amount to a violation of

articles 7 or 10, paragraph 1. The Committee’s detailed Views on this issue

were set out in the Views on communication No. 588/1994 (Errol Johnson

v. Jamaica)’. Because of the importance of the issue, the Committee deems it

appropriate to reiterate its position.

5.3 In assessing whether the mere length of detention on death row may

constitute a violation of articles 7 and 10, the following factors must be

considered:

(a) The Covenant does not prohibit the death penalty, though it

subjects its use to severe restrictions. As detention on death row is

a necessary consequence of imposing the death penalty, no matter how

cruel, degrading and inhuman it may appear to be, it cannot, of itself,

be regarded as a violation of articles 7 and 10 of the Covenant.

{b) While the Covenant does not prohibit the death penalty, the

Committee has taken the view, which has been reflected in the Second

Optional Protocol to the Covenant, that article 6 "refers generally to

abolition in terms which strongly suggest that abolition is desirable”.

Reducing recourse to the death penalty may therefore be seen as one of

the objects and purposes of the Covenant.

(c) The provisions of the Covenant must be interpreted in the light

of the Covenant'’s objects and purposes (article 31 of the Vienna

Convention on the Law of Treaties). As one of these objects and purposes

is to promote reduction in the use of the death penalty, an

interpretation of a provision in the Covenant that may encourage a State

4 Views on communication No. 588/1994 (Errol Johnson v. Jamaica), adopted

22 March 1996, paragraphs 8.1 to 8.6.

CCPR/C/61/D/555/1993

Page 6

party that retains the death penalty to make use of that penalty should,

where possible, be avoided.

5.4 In light of these factors, we must examine the implications of holding

the length of detention on death row, per se, to be in violation of articles 7

and 10. The first, and most serious, implication is that if a State party

executes a condemned prisoner after he has spent a certain period of time on

death row, it will not be in violation of its obligations under the Covenant,

whereas if it refrains from doing so, it will violate the Covenant. An

interpretation of the Covenant leading to this result cannot be consistent

with the Covenant’s object and purpose. The above implication cannot be

avoided by refraining from determining a definite period of detention on death

row, after which there will be a presumption that detention on death row

constitutes cruel and inhuman punishment. Setting a cut-off date certainly

exacerbates the problem and gives the State party a clear deadline for

executing a person if it is to avoid violating its obligations under the

Covenant. However, this implication is not a function of fixing the maximum

permissible period of detention on death row, but of making the time factor,

per se, the determining one. If the maximum acceptable period is left open,

States parties which seek to avoid overstepping the deadline will be tempted

to look to the decisions of the Committee in previous cases so as to determine

what length of detention on death row the Committee has found permissible in

the past.

5.5 The second implication of making the time factor per se the determining

one, i.e. the factor that turns detention on death row into a violation of the

Covenant, is that it conveys a message to States parties retaining the death

penalty that they should carry out a capital sentence as expeditiously as

possible after it was imposed. This is not a message the Committee would wish

to convey to States parties. Life on death row, harsh as it may be, is

preferable to death. Furthermore, experience shows that delays in carrying out

the death penalty can be the necessary consequence of several factors, many

of which may be attributable to the State party. Sometimes a moratorium is

placed on executions while the whole question of the death penalty is under

review. At other times the executive branch of government delays executions

even though it is not feasible politically to abolish the death penalty. The

Committee would wish to avoid adopting a line of jurisprudence which weakens

the influence of factors that may very well lessen the number of prisoners

actually executed. It should be stressed that by adopting the approach that

prolonged detention on death row cannot, per se, be regarded as cruel ard

inhuman treatment or punishment under the Covenant, the Committee does not

wish to convey the impression that keeping condemned prisoners on death row

for many years is an acceptable way of treating them. It is not. However, the

cruelty of the death row phenomenon is first and foremost a function of the

permissibility of capital punishment under the Covenant. This situation has

unfortunate consequences.

5.6 To accept that prolonged detention on death row does not, per se,

constitute a violation of articles 7 and 10, does not imply that other

CCPR/C/61/D/555/1993

Page 7

circumstances connected with detention on death row may not turn that

detention into cruel, inhuman or degrading treatment or punishment. The

Committee’s jurisprudence has been that where further compelling circumstances

relating to the detention are substantiated, that detention may constitute a

violation of articles 7 and/or 10, paragraph 1, of the Covenant.

5.7 In this case, counsel has not alleged the existence of circumstances,

over and above the mere length of detention, which would have turned the

author’s detention on death row at the State Prison into a violation of

articles 7 and 10, paragraph 1. As the Committee must, under article 5,

paragraph 1, of the Optional Protocol, consider the communication in the light

of all the information of the parties, the Committee cannot, in the absence

of information on additional factors, conclude that there has been a violation

of these provisions.

6. 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 the Committee do not reveal a violation

by Trinidad and Tobago of any of the provisions of the Covenant.

7. The Committee welcomes the commutation of Mr. Bickaroo’s death sentence

by the State party’s authorities in December of 1993.

[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. ]

CCPR/C/61/D/555/1993

Page 8

APPENDIX

Individual opinion by Committee member Fausto Pocar,

approved by Mr. Prafullachandra N. Bhagwati, Ms. Christine Chanet,

Ms. Pilar Gaitan de Pombo, Mr. Julio Prado Vallejo and Mr. Maxwell Yalden

regarding the cases of LaVende and Bickaroo

The Committee reiterates in the present cases the views that prolonged

detention on death row cannot per_se constitute a violation of article 7 of

the Covenant. This view reflects a lack of flexibility that would not allow

the Committee to examine the circumstances of each case, in order to determine

whether, in a given case, prolonged detention on death row constitutes cruel,

inhuman or degrading treatment within the meaning of the above-mentioned

provision. This approach leads the Committee to conclude, in the present

cases, that detention on death row for almost sixteen/eighteen years after the

exhaustion of local remedies does not allow a finding of violation of

article 7. We cannot agree with this conclusion. Keeping a person detained on

death row for so many years, after exhaustion of domestic remedies, and in the

absence of any further explanation of the State party as to the reasons

thereof, constitutes in itself cruel and inhuman treatment. It should have

been for the State party to explain the reasons requiring or justifying such

prolonged detention on death row; however, no justification was offered by the

State party in the present cases.

Even assuming, as the majority of the Committee does, that prolonged

detention on death row cannot per se constitute a violation of article 7 of

the Covenant, the circumstances of the present communication would in any case

reveal a violation of the said provision of the Covenant. The facts of the

communication, as submitted by the author and uncontested by the State party,

show that "on 30 September 1993 a warrant for the author’s execution on

5 October 1993 was read to him... A stay of execution was granted during the

night of 4 to 5 October 1993". In our view, reading a warrant of execution to

a detainee remaining confined to death row for such a long time, and

attempting to proceed to his execution after so many years - at a time when

the State party had raised in the detainee a legitimate expectation that the

execution would never be carried out - constitute in themselves cruel and

inhuman treatment within the meaning of article 7 of the Covenant, to which

the author was subjected. Moreover, they constitute such further "compelling

circumstances" that should have led the Committee, even if it wanted to

reaffirm its previous jurisprudence, to find that prolonged detention on death

row revealed, in the present cases, a violation of article 7 of the Covenant.

F. Pocar [signed]

P. N. Bhagwati [signed]

Ch. Chanet [signed]

J. Prado Vallejo [signed]

M. Yalden [signed]