Decision on merits; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
CCPR
International Covenant
on Civil and Political
Rights
UNITED
NATIONS
Distr.
RESTRICTED*
CCPR/C/64/D/752/1997
10 February 1999
Original: ENGLISH
HUMAN RIGHTS COMMITTEE
Sixty-fourth session
19 October - 6 November 1998
VIEWS
Communication Nº 752/1997
Submitted by:
Allan Henry
(represented by Mr. S. Lehrfreund of
Simons, Muirhead & Burton, a law firm in
London, England)
Alleged victim:
The author
State party:
Trinidad and Tobago
Date of communication:
9 September 1996 (initial submission)
Date of adoption of Views
3 November 1998
On 3 November 1998, the Human Rights Committee adopted its Views under
article 5, paragraph 4, of the Optional Protocol in respect of communication No.
752/1997. The text of the Views is appended to the present document.
[ANNEX]
* Made public by decision of the Human Rights Committee.
GE.99-40554
CCPR/C/64/D/752/1997
Page 1
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-fourth session -
concerning
Communication Nº 752/1997
Submitted by:
Allan Henry
(represented by Mr. S. Lehrfreund of
Simons, Muirhead & Burton, a law firm in
London, England)
Alleged victim:
The author
State party:
Trinidad and Tobago
Date of communication:
9 September 1996
The Human Rights Committee, established under article 28 of the
International Covenant on Civil and Political Rights,
Meeting on 3 November 1998,
Having concluded its consideration of communication No. 752/1997 submitted
to the Human Rights Committee by Allan Henry, 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. Th. Buergenthal, Lord Colville, Mr. Omran El Shafei, Ms. Elizabeth Evatt,
Mr. Eckart Klein, Mr. David Kretzmer, Ms. Cecilia Medina Quiroga, Mr. Fausto
Pocar, Mr. Martin Scheinin, Mr. Roman Wieruszewski, Mr. Maxwell Yalden snd Mr.
Abdallah Zakhia.
CCPR/C/64/D/752/1997
Page 2
The author’s death sentence was commuted following the judgement of the
1
Judicial Committee of the Privy Council in Pratt & Morgan v. Jamaica of 3
November 1993.
Communication No. 302/1988, declared inadmissible on 31 October 1990.
2
But apparently after the Committee’s decision of 31 October 1990 with
3
regard to his earlier communication No. 302/1988.
Views under article 5,paragraph 4, of the Optional Protocol
1.1
The author of the communication is Mr. Allan Henry, a Guyanese citizen
serving a life sentence at the State Prison in Port-of-Spain, Trinidad. He
claims to be a victim of violations by Trinidad & Tobago of articles 7 and 10,
paragraph 1, as well as article 14, paragraph 1, of the Covenant. He is
represented by Mr. Saul Lehrfreund of Simons, Muirhead & Burton, a law firm in
London, England.
1.2
On 8 July 1983, the author was sentenced to death for the murder of an
English sailor. He was detained on death row until the commutation of his
sentence to life imprisonment on 4 January 1994. An earlier communication by Mr.
1
Henry to the Human Rights Committee, claiming violations of articles 10 and 14
was declared inadmissible by the Committee for non-substantiation with regard
to the claim under article 14, and for non-exhaustion of domestic remedies with
regard to the claims under article 10. In the present communication, the author
2
requests that the Committee’s previous decision with regard to the admissibility
of his claims under article 10 be reviewed in accordance with rule 92, paragraph
2, of the Committee’s rules of procedure.
Facts as submitted by the author
2.1
The author states that he was beaten on the head by prison officers on 3
May 1988, resulting in a head wound which required several stitches. The author
states that he submitted a complaint to the Ombudsman, on an unspecified date,
3
and that on 16 July 1993 the Office of the Ombudsman replied that it had
investigated his complaints and that the investigation revealed that the matters
complained of were already receiving the attention of the Prison authorities.
2.2
The author further submits that the medical treatment in prison is wholly
inadequate and deficient. According to the author, due to the lighting in his
cell on death row, his eyes have become extremely sensitive to light and he has
to wear dark glasses. He states that he saw an eye specialist on 10 March 1994,
but that he still has not received any new eye glasses, although his eye sight
has deteriorated.
2.3
The author states that during his detention on death row, he was confined
in a 9 x 6' cell for 23 hours a day. A light burned in his cell 24 hours a day
and no natural lighting existed. There was no integral sanitation in the cell.
There was a ventilation hole, measuring 8" x 8", but no window. The exercise
CCPR/C/64/D/752/1997
Page 3
periods were insufficient and were not longer than one hour in a small exercise
yard with handcuffs on.
2.4
According to the author, the conditions of his detention have not improved
since the commutation of his death sentence. He shares a 9 x 6' cell with one
other life timer and between eight and fourteen convicted prisoners, some of
whom suffer from diseases or are drug addicts. The cells are filthy and infested
with roaches, flies and rats. Since there is one iron bed with one mattress, the
author and his cell mates are forced to sleep on the floor on pieces of a
cardboard box. They are locked in the cell from 3:00 pm to 7:00 am, when
breakfast is served, and then again from 8:00 am to 11:00 am. No sanitation is
available in the cell other than one slop bucket to be shared by all cell
inmates. The toilets are ten feet away from the kitchen, and the kitchen is
infested with rats and insects. The author moreover states that no provisions
are made for his dietary needs as a Muslim. No medication is available for his
haemorrhoids.
2.5
Further, the author states that in June 1987, he requested legal aid for
the filing of a constitutional motion. A copy of the constitutional motion which
was submitted by the author with his previous communication No. 302/1988, shows
that the motion was based on the alleged unconstitutionality of the author’s
execution (as cruel punishment), as well as on the length of his stay on death
row and the conditions of his detention. The author obtained legal assistance
from a local humanitarian organization, which filed a constitutional motion on
his behalf. However, the motion was abandoned when his representatives were
informed that no financial assistance was made available by the judicial
authorities. The author states that he made numerous attempts to obtain legal
aid for a constitutional motion, to no avail.
The complaint
3.1 The author claims that the beatings of 3 May 1988, the lack of adequate
medical treatment and the conditions of his detention both before and after the
commutation of his death sentence constitute a violation of articles 7 and 10
of the Covenant.
3.2 The author moreover claims that he is a victim of a violation of article 14,
paragraph 1, in conjunction with article 2, paragraph 3, of the Covenant, since
he has not been granted legal aid to appeal to the Constitutional Court and he
is thus denied access to court.
State party’s observations and counsel’s comments
4.1 In its response, dated 27 November 1997, the State party denies that it is
unwilling to grant legal aid for constitutional motions, and submits that legal
aid is made available for the purpose. According to the State party, the author
only applied for legal aid once, on 25 June 1987. His application was rejected
by the Legal Aid Authority on 31 December 1987, after due consideration and in
accordance with the Legal Aid and Advice Act. Since that date, the author has
not formally applied for legal aid, but merely written to various persons and
bodies in an attempt to have the rejection of legal aid reversed. The State
CCPR/C/64/D/752/1997
Page 4
See below, paras 4.10 and 4.11.
4
party submits that the author can apply for legal aid at any time. It explains
that the granting of legal aid is not automatic.4
4.2 In light of the above, the State party argues that the communication is
inadmissible for failure to exhaust domestic remedies.
4.3 In order to expedite the consideration of the communication, the State party
also addresses the merits of the author’s complaint. With regard to the alleged
beatings on 3 May 1988, the State party submits that the prison records show
that the author was involved in an altercation with a prison officer. In self-
defence, the officer struck the author with his regulation baton, which resulted
in the author receiving a wound to his head. The author was charged with
assault. Following an investigation by the prison authorities, the charge
against the author was dismissed on 9 May 1988 because of insufficient evidence.
The State party argues, however, that this does not reflect upon the veracity
of the officer’s evidence and maintains that the author’s aggression
necessitated the use of force and that no more than necessary force was used.
The State party adds that the author’s complaint against the officer was fully
investigated. The State party further denies that the author has been singled
out for exceptionally harsh treatment.
4.4 With regard to the author’s complaint about the lack of medical treatment,
the State party submits that the allegation is unfounded. According to the
prison records the author first sought to have his spectacles renewed in 1991.
This was done. Following a visit to an eye specialist the author was provided
with a new pair of spectacles on 13 October 1995. In this context, the State
party explains that prison regulations require that a death row prisoner be
subject to constant observation, and that for this reason the light in the cell
is on 24 hours a day. The State party further explains that all medical
complaints made by inmates are dealt with as quickly as possible. According to
the State party, records reveal that the author was seen by the Prison Medical
Officer on numerous occasions and was satisfactorily treated.
4.5 With regard to the prison conditions, the State party denies that they
amount to a violation of article 7 of the Covenant. It accepts, however, that
article 10 is relevant in this context. According to the State party, the “issue
before the Committee is whether the Applicant during his incarceration in the
State Prison has been treated with humanity and with respect for the inherent
dignity of the human person. It is respectfully submitted that in determining
this question the Committee should treat with caution the allegations put
forward by or on behalf of the Applicant which are largely unsubstantiated and
grossly exaggerated.”
4.6 The State party submits that since the commutation of his death sentence,
the author shares his cell with no more than five other prisoners at the time.
Every cell is constructed to allow for natural light. Additionally, each cell
is fitted with sufficient bedding to avoid any inmate sleeping on cardboard on
the floor. According to the State party, it is inevitable in a tropical climate
that cockroaches will be found in all habitations; it submits that this is a
problem which is not exclusive to the prison environment. The State party states
CCPR/C/64/D/752/1997
Page 5
that every effort is made to ensure that such pests are controlled and that
health standards are maintained.
4.7 The State party explains that the slop buckets are emptied at least three
times a day, at 6:00 am, 12:00 noon and 6:00 pm. The State party further submits
that since the author’s sentence has been commuted he enjoys at least four hours
a day in the open air. Reading materials such as magazines and newspapers are
available to the prisoners on a regular basis, and opportunity is provided to
undertake correspondence courses.
4.8 The State party rejects the author’s allegation that no provision is made
for his special dietary needs as a Muslim. According to the State party, in the
preparation of the meals consideration is given to inmates of the various
religious groups. Strict standards of hygiene are observed. In this connection,
the State party explains that personnel from the Ministry of Health visit the
prisons regularly to ensure that health standards are observed.
4.9 In the light of the above, the State party denies that the author has been
subjected to treatment which would violate either article 7 or article 10 of the
Covenant.
4.10 The State party contests the author’s allegation that he has been denied
access to Court, because he has not been given legal aid for a constitutional
motion. The State party points out that in principle legal aid is available for
constitutional motions. Section 23 of the Legal Aid and Advice Act allows the
Legal Aid Authority to grant aid if “the Authority is of the opinion that the
Applicant has reasonable grounds for taking the proceedings”. The author made
his application for legal aid on 25 June 1987 and on 31 December 1987, legal aid
was refused. According to the State party, no subsequent application for legal
aid for a constitutional motion has been made by the author. Due to the legal
privilege between the author and the Legal Aid Authority, the State party cannot
ascertain the reasons for the refusal of legal aid. The State party submits that
the author is free to apply again for legal aid if he so wishes. It considers
without merit, however, his claim that he is being denied access to the courts
on the basis of a legal aid application rejected in 1987.
4.11 It is the submission of the State party that all States which administer
a legal aid scheme from public funds must have the right to reject applications
which are frivolous, vexatious or without merit. There is no right of unlimited
access to the courts at public expense in such cases. According to the State
party, only if the author is able to argue that the refusal of legal aid was
founded upon irregularity, irrationality or procedural impropriety should he be
able to allege that he has been denied access to the courts.
5.1 In his comments on the State party’s submission, dated 3 April 1998, counsel
rejects the State party’s argument that the communication is inadmissible for
non-exhaustion of domestic remedies. He submits that the author requested legal
aid for a constitutional motion, that this was refused, and that he has thus
done everything in his power to exhaust domestic remedies.
5.2 With regard to the incident of 3 May 1988, counsel submits that the general
denials of the State party are insufficient to satisfy the requirements of
article 4(2) of the Optional Protocol. He argues that the State party has a duty
CCPR/C/64/D/752/1997
Page 6
to investigate in good faith all allegations of violations of the Covenant and
inform the Committee accordingly. In this context, he notes that the State party
relies on prison records which have not been made available to the Committee.
He also notes that the State party has not provided any substantiation for its
statement that the author’s complaint against the police officer was fully
investigated. Counsel further argues that the fact that the author was not
charged with assault contradicts the State party’s assertion that the officer
was acting in self-defence.
5.3 Also with respect to the medical treatment, counsel notes that the State
party has not provided copies of the medical records which allegedly show that
the author has received medical treatment.
5.4 Counsel notes that the State party’s reply in respect to the prison
conditions only relates to the conditions since the commutation of the author’s
death sentence and that it has not addressed his complaint about the conditions
during his detention on death row.
5.5 Counsel maintains that the conditions of the author’s detention both before
and after commutation constitute a violation of articles 7 and 10 of the
Covenant.
Issues and proceedings before the Committee
6.1 Before considering any claim 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.
6.2 The State party has argued that the communication is inadmissible for non-
exhaustion, because the author has not filed a constitutional motion. Counsel
has argued that the author cannot file a constitutional motion, because no legal
aid has been made available to him. In the circumstances, the Committee finds
that the constitutional motion is not a remedy which is available to the author,
within the meaning of article 5, paragraph 2(b), of the Optional Protocol.
6.3 The Committee has ascertained, as required 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.
6.4 The Committee finds therefore that the communication is admissible. The
State party has provided information on the merits, in order to expedite the
consideration of the communication. The Committee thus proceeds without further
delay to the examination of the merits of the communication.
7.1 With regard to the incident on 3 May 1988, during which the author was
beaten on the head, the Committee notes that the State party has provided
information that the use of force by the prison officer was necessary in self-
defence. The author has challenged this information, and referred to the fact
that he had not been charged with any offence in this connection. The Committee
notes that from the information made available by the parties, it appears that
the reason given by the State party to explain the force used over Mr. Henry,
namely self-defence, was examined in the procedure before the Superintendent of
Prisons in order to determine whether the author had committed an assault
against the prison officer, and subsequently rejected, since the charge against
CCPR/C/64/D/752/1997
Page 7
See inter alia the Committee’s Views in respect of communications Nos.
5
377/1989 (Anthony Currie v. Jamaica), adopted on 29 March 1994, and 705/1996
(DesomdTaylor v. Jamaica), adopted on 2 April 1998.
the author was dismissed. In light of the above and considering that the State
party has failed to inform the Committee about the outcome of the investigation
of the author’s complaint against the prison officer, the Committee finds that
the State party has failed to show that the use of force on the author was
necessary. Consequently, this constitutes a violation of article 7 of the
Covenant.
7.2 With regard to the author’s complaint that he does not receive proper
medical treatment and in particular, that he has not been given new eye-glasses
since 1994, the Committee notes that the State party has stated that according
to the medical records the author received new spectacles in October 1995. The
Committee is of the opinion that the facts before it do not show that the
Covenant has been violated in this respect.
7.3 The State party has failed to provide any information with regard to the
conditions of the author’s detention on death row. In the circumstances due
weight must be given to the author’s allegations, if substantiated. The
Committee finds that the circumstances of detention as described by the author
amount to a violation of article 10, paragraph 1, of the Covenant.
7.4 The State party has contested the information provided by the author
concerning the circumstances of his detention since the commutation of his death
sentence. The Committee notes, however, that the State party admits that the
author is being kept in a 9 x 6' cell together with five other inmates; nor has
the State party challenged that the prisoners share a single slop pail. The
Committee finds that such overcrowding is not in compliance with the requirement
that prisoners be treated with humanity and with respect for the inherent
dignity of the human person and constitutes a violation of article 10, paragraph
1.
7.5 Counsel has claimed that the absence of legal aid for the purpose of filing
a constitutional motion in itself constitutes a violation of the Covenant. The
State party has challenged this claim saying that legal aid is in principle
available for constitutional motions, but that the granting of legal aid is not
automatic but subject to conditions. The Committee has held on previous
occasions that the determination of rights in the hearing of constitutional
motions must conform with the requirements of a fair hearing in accordance with
article 14, paragraph 1, and that legal assistance must be provided free of
charge where a convicted person seeking constitutional review of irregularities
in a criminal trial has insufficient means to meet the costs of legal assistance
in order to pursue his constitutional remedy and where the interest of justice
so requires.5
7.6
In this particular case, the issue which the author wished to bring in the
constitutional motion was the question of whether his execution, the conditions
of his detention or the length of his stay on death row amounted to cruel
punishment. The Committee considers that, although article 14, paragraph 1, does
CCPR/C/64/D/752/1997
Page 8
not expressly require States parties to provide legal aid outside the context
of the criminal trial, it does create an obligation for States to ensure to all
persons equal access to courts and tribunals. The Committee considers that in
the specific circumstances of the author’s case, taking into account that he was
in detention on death row, that he had no possibility to present a
constitutional motion in person, and that the subject of the constitutional
motion was the constitutionality of his execution, that is, directly affected
his right to life, the State party should have taken measures to allow the
author access to court, for instance through the provision of legal aid. The
State party’s failure to do so, was therefore in violation of article 14,
paragraph 1.
8.
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 violations of articles 7, 10,
paragraph 1 and 14, paragraph 1, of the Covenant.
9.
Under article 2, paragraph 3(a), of the Covenant, the State party is under
the obligation to provide Mr. Allan Henry with an effective remedy, including
compensation. The State party is under an obligation to take measures to prevent
similar violations in the future.
10. Bearing in mind that, by becoming a State party to the Optional Protocol,
Trinidad and Tobago have recognized the competence of the Committee to determine
whether there has been a violation of the Covenant or not and that, pursuant to
article 2 of the Covenant, the State party has undertaken to ensure to all
individuals within its territory and subject to its jurisdiction the rights
recognized in the Covenant and to provide an effective and enforceable remedy
in case a violation has been established, the Committee wishes to receive from
the State party, within ninety days, information about the measures taken to
give effect to the Committee's Views. The State party is also requested to
publish the Committee’s Views.
[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.]