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A/HRC/WGAD/2017/68

Opinion no. 68/2017 concerning Zaheer Seepersad (Trinidad and Tobago)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2017-11-24 · en UN

Opinion; Subjects: TRINIDAD AND TOBAGO, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.17-22941(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eightieth session, 20–24 November 2017

Opinion No. 68/2017 concerning Zaheer Seepersad (Trinidad and

Tobago)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights, which extended and clarified the Working Group’s

mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and

Human Rights Council decision 1/102, the Council assumed that mandate and most

recently extended it for a three-year period in its resolution 33/30 of 30 September 2016.

2.

In accordance with its methods of work (A/HRC/36/38), on 6 September 2017 the

Working Group transmitted to the Government of Trinidad and Tobago a communication

concerning Zaheer Seepersad. The Government has not replied to the communication. The

State is a party to the International Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation,

disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

United Nations

A/HRC/WGAD/2017/68

General Assembly

Distr.: General

20 December 2017

Original: English

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Submissions

Communication from the source

4.

Zaheer Seepersad is a national of Trinidad and Tobago, born in 1987, who usually

resides in Chaguanas, Trinidad. According to the source, Mr. Seepersad has dystonia, a

neurological movement disorder.

5.

Mr. Seepersad was allegedly deprived of his liberty on 8 January 2015, when

employees of a private ambulance company took him from his grandfather’s house in

Arima, Trinidad, to St. Ann’s Psychiatric Hospital. There, a medical officer from the

admissions and assessment centre approved his internment under section 7 of the Mental

Health Act of 1975.

6.

The source submits that no order from a public authority requesting the

apprehension of Mr. Seepersad was shown at the time of his deprivation of liberty. It is

reported that allegations had been made by Mr. Seepersad’s father that Mr. Seepersad was

mentally ill and in need of care and treatment at the hospital.

7.

In that context, it is reported that Mr. Seepersad’s father submitted a medical

certificate issued by a doctor recommending his son be admitted to the hospital. However,

the source argues that the certificate was not legally valid because the issuing doctor had in

fact never seen or medically examined Mr. Seepersad. Nonetheless, the certificate was

accepted as the basis for his admission to the hospital. The issuance of the certificate was

supposedly done in order to frame the measure of internment as complying with section 7

of the Mental Health Act.

8.

According to the information received, Mr. Seepersad was released after two months

of internment at the hospital.

9.

In addition, the source reports that, on 4 May 2016, Mr. Seepersad was again taken

from the house where he lived with his parents and deprived of his liberty. As on the

previous occasion, employees of the private ambulance company took him from the house

and drove him to the same hospital. Again, an officer from the admissions and assessment

centre ordered that he be interned under section 7 of the Mental Health Act. However, no

medical certificate confirming the need for the internment was issued or presented. Instead,

the source alleges that the same medical certificate that had previously been used for the

detention in 2015 was again cited as the basis for the admission of Mr. Seepersad to the

hospital. The source claims that this shows Mr. Seepersad is at risk of being detained again

in the future, on the basis of the same certificate.

10.

According to the information received, Mr. Seepersad was released after 16 days of

being deprived of his liberty at the hospital.

11.

The source submits that, in order to deprive a person of his or her liberty under

section 7 of the Mental Health Act, the assertion that the person is mentally ill must be

accompanied by a medical certificate from a doctor, other than the duly authorized medical

officer responsible for admitting the person to hospital. The source states that, according to

the Medical Board Act, under section 24 (5) (c), it is considered medical misconduct for

any practitioner knowingly to give a false medical certificate with respect to the state of

health of any given person. Furthermore, according to the source, under the Code of Ethics

in the Practice of Medicine of the Medical Board of Trinidad and Tobago, a medical

certificate should contain information based on the medical practitioner’s own observation.

12.

The source reports that Mr. Seepersad is being prevented by his family from

pursuing a false imprisonment tort claim and from applying to the High Court of Trinidad

and Tobago, under section 14 of the Constitution, in order to seek a remedy for the

violations of his constitutional rights. Similarly, he is reportedly being prevented by his

family from making a complaint before the Medical Board of Trinidad and Tobago, under

article 25 (5) (c) of the Medical Board Act.

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Categories of the Working Group

13.

The source submits that the deprivation of liberty of Mr. Seepersad was not

compliant with the Mental Health Act and, as a consequence, amounted to detention

without a legal basis and thus arbitrary under category I.

14.

Furthermore, according to the source, Mr. Seepersad is being neglected by his

family and, in both instances, he was deprived of his liberty on the basis of his physical

impairment. In that regard, the source claims that Mr. Seepersad is being discriminated

against on the basis of his disability, thus rendering his detention arbitrary under category

V.

15.

In addition, the source claims that Mr. Seepersad is being prevented from having

access to the State court system in order to protect his rights. As a consequence, the source

argues that the international norms related to a fair trial are not being respected, thus

rendering the detention of Mr. Seepersad arbitrary under category III.

Response from the Government

16.

On 6 September 2017, the Working Group transmitted the allegations from the

source to the Government under its regular communications procedure. The Working

Group requested the Government to provide, by 6 November 2017, detailed information

about the current situation of Mr. Seepersad and any comments on the source’s allegations.

17.

The Working Group regrets that it did not receive a response from the Government,

and that the Government did not request an extension of the time limit for its reply, as

provided for in the Working Group’s methods of work.

Discussion

18.

At the outset, the Working Group notes that Mr. Seepersad was in fact released

following his most recent alleged internment and is currently not in any detention facility.

However, it also notes that, in accordance with paragraph 17 (a) of its methods of work, it

reserves the right to render an opinion, on a case-by-case basis, as to whether the

deprivation of liberty was arbitrary, notwithstanding the release of the person concerned. In

the present case, the Working Group is of the view that the allegations made by the source

are extremely serious, revealing paradigmatic issues concerning the deprivation of liberty

of a person with a disability, and shall therefore proceed to deliver its opinion.

19.

In the absence of a response from the Government, the Working Group has decided

to render the present opinion, in conformity with paragraph 15 of its methods of work.

20.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie case for breach of

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest upon the Government if it wishes to refute the allegations (see

A/HRC/19/57, para. 68). In the present case, the Government has chosen not to challenge

the prima facie credible allegations made by the source.

21.

The source has submitted that the detention of Mr. Seepersad on 8 January 2015 and

his subsequent internment at St. Ann’s Psychiatric Hospital for a period of two months and

then again on 4 May 2016 for 16 days was arbitrary, falling under categories I, III and V.

The Working Group notes that the Government had the opportunity but has failed to

present any submissions in relation to those allegations. The Working Group shall examine

the categories in turn.

22.

The Working Group observes that arbitrary detention can occur not only in criminal

justice settings but also in health-care settings, such as psychiatric hospitals and other

institutions where individuals may be deprived of their liberty. As the Working Group has

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stated in its most recent annual report, the deprivation of personal liberty occurs when a

person is being held without his or her free consent.1

23.

The Working Group notes that article 9 of the Covenant requires that any

deprivation of liberty occur only when it is prescribed expressly by the national legislation

and in accordance with the procedure set out in that national legislation. In the present case,

the Working Group observes that section 7 of the Mental Health Act states that, even in

cases of medical emergency, an individual can only be admitted to a psychiatric hospital if

an application has been made that that person is mentally ill and that his or her admission is

in the interest of the person’s health and/or the safety and protection of others. Furthermore,

any such admission must be accompanied by a certificate from a medical practitioner other

than the duly authorized medical officer responsible for the admission of the person (see

sect. 7 (2) (a) and (b)). Moreover, no individual shall be admitted to a hospital as an

emergency patient if more than three days have elapsed since the date of issuance of said

medical certificate (see sect. 7 (3)).

24.

Without making any assessment on the compatibility of the above provisions of that

national law with the international human rights obligations undertaken by Trinidad and

Tobago, it appears obvious to the Working Group that those provisions were not followed

during either internment of Mr. Seepersad at St. Ann’s Psychiatric Hospital. First,

according to the information submitted to the Working Group, which the Government of

Trinidad and Tobago has chosen not to challenge, Mr. Seepersad does not suffer from any

mental illness. The Working Group is therefore alarmed that the Mental Health Act of

Trinidad and Tobago and its provisions concerning involuntary emergency admittance to a

psychiatric institution were applied to Mr. Seepersad at all.

25.

Moreover, the medical certificate that was used to allegedly legitimize the first

internment of Mr. Seepersad was not issued by a doctor who had in fact examined him.

Furthermore, the same certificate was used for the legitimatization of his second

internment, which took place 16 months later in obvious disregard of section 7 (3) of the

Mental Health Act, which requires that such certificates be no more than three days old.

The Working Group notes that the Government had the opportunity but has failed to

present any submissions also in that regard. The Working Group therefore concludes that

the authorities of Trinidad and Tobago failed to respect their own national legal provisions

in relation to the two instances of detention of Mr. Seepersad and thus also breached article

9 of the Covenant, which specifically requires that any detention must be carried out in

accordance with the law.

26.

The Working Group wishes to further underline that any instance of deprivation of

liberty, including internment in psychiatric hospitals, must meet the standards set out in

article 9 of the Covenant. The Working Group, in the United Nations Basic Principles and

Guidelines on Remedies and Procedures on the Rights of Anyone Deprived of Their

Liberty to Bring Proceedings before a Court, has stated that, where a person with a

disability is deprived of his or her liberty through any process, that person is, on an equal

basis with others, entitled to guarantees in accordance with international human rights law,

necessarily including the right to liberty and security of person, reasonable accommodation

and humane treatment in accordance with the objectives and principles of the highest

standards of international law pertaining to the rights of persons with disabilities. A

mechanism complete with due process of law guarantees shall be established to review

cases of placement in any situation of deprivation of liberty without specific, free and

informed consent. Such reviews are to include the possibility of appeal.2

27.

The Working Group observes that all such due process guarantees were absent in

relation to both internments of Mr. Seepersad, in a further breach of article 9 of the

Covenant.

28.

The source has also argued that Mr. Seepersad has been prevented by his family

from gaining access to the court system in order to bring claims for the infringement of his

1 See A/HRC/36/37, para. 51. See also A/HRC/30/37, para. 9.

2 See A/HRC/30/37, paras. 104–105.

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rights, an allegation that the Government has chosen not to challenge. The Working Group

recalls that according to the Basic Principles and Guidelines, the right to challenge the

lawfulness of detention before a court is a self-standing human right, which is essential to

preserve legality in a democratic society.3 That right, which is in fact a peremptory norm of

international law, applies to all forms of deprivation of liberty,4 as well as to all situations

of deprivation of liberty, including not only to detention for purposes of criminal

proceedings but also to situations of detention under administrative and other fields of law,

including military detention, security detention, detention under counter-terrorism

measures, involuntary confinement in medical or psychiatric facilities, migration detention,

detention for extradition, arbitrary arrests, house arrest, solitary confinement, detention for

vagrancy or drug addiction, and detention of children for educational purposes.5 Moreover,

it also applies irrespective of the place of detention or the legal terminology used in the

legislation. Any form of deprivation of liberty on any ground must be subject to effective

oversight and control by the judiciary.6

29.

The Working Group notes that those provisions were plainly ignored in the case of

Mr. Seepersad as he was not only unable to challenge the legality of his detention while he

was in the hospital, but also upon his release from there on both occasions.

30.

The Working Group therefore concludes that the detention of Mr. Seepersad on 8

January 2015 and his subsequent internment in St. Ann’s Psychiatric Hospital for a period

of two months and then again on 4 May 2016 for 16 days were arbitrary and fall under

category I, as they lacked legal basis, were not carried out in accordance with the procedure

established by national law and did not provide for the requisite due process guarantees,

and as Mr. Seepersad was not able to challenge the legality of his detention.

31.

The source has also submitted that the present case falls under category V, as the

detention of Mr. Seepersad and his subsequent internment in the hospital were

discriminatory, being on the basis of his physical impairment. The Working Group notes

the absence of any reply from the Government in relation to that allegation.

32.

The Working Group also notes that Trinidad and Tobago has been a party to the

Convention on the Rights of Persons with Disabilities since 25 June 2015. The Working

Group reiterates7 that it is contrary to the provisions of that Convention to deprive a person

of his or her liberty on the basis of disability (art. 14).8 Moreover, as the Working Group

stated in the Basic Principles and Guidelines, the involuntary committal or internment of

persons on the grounds of the existence of an impairment or perceived impairment is

prohibited.9

33.

It is however clear to the Working Group that the deprivation of liberty of Mr.

Seepersad was made purely on the basis of his physical impairment, and was therefore

discriminatory. The Working Group therefore concludes that the detention of Mr.

Seepersad and his subsequent internment in St. Ann’s Psychiatric Hospital on two

occasions were discriminatory and fall under category V.

34.

The Working Group would like to express its most serious concern at the reports it

has received about the persistent harassment, intimidation and threats to which Mr.

Seepersad has been subjected for bringing his claims to the attention of the Working Group.

The Working Group reminds the Government of Trinidad and Tobago that States have a

duty to protect individuals and groups and to exercise due diligence in doing so.

Intimidation or reprisals may be the result of acts or omission by both State and non-State

actors. However, acts or omissions are attributable to the State when they are carried out

3 Ibid, paras. 2 and 3.

4 Ibid, para. 11.

5 Ibid, para. 47 (a).

6 Ibid, para. 47 (b).

7 See A/HRC/36/37, para. 55.

8 See also Human Rights Committee general comment No. 35 (2014) on liberty and security of person,

para. 19.

9 See A/HRC/30/37, at para. 103.

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with the consent or acquiescence of an official or other person acting in an official capacity

against any individuals or groups who are seeking to cooperate, who are cooperating or

who have cooperated with the United Nations.10

35.

The Working Group requests the Government to ensure that all acts of intimidation

against Mr. Seepersad cease and that an impartial and effective investigation is carried out

in relation to such acts and those responsible brought to justice. The Working Group refers

the present case for further action to the focal point on reprisals of the Coordination

Committee of Special Procedures and to the Assistant Secretary-General for Human Rights,

to lead the efforts of the United Nations to put an end to intimidation and reprisals against

those cooperating with it on human rights-related matters.

36.

The Working Group also refers the present case for further consideration to the

Special Rapporteur on the rights of persons with disabilities and the Special Rapporteur on

the right of everyone to the enjoyment of the highest attainable standard of physical and

mental health.

Disposition

37.

Although Mr. Seepersad has been released, the Working Group, in accordance with

paragraph 17 (a) of its methods of work, reserves the right to render an opinion as to

whether or not the deprivation of liberty was arbitrary, notwithstanding the release. In the

light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Mr. Zaheer Seepersad, being in contravention of

articles 2, 3, 6, 7, 8 and 9 of the Universal Declaration of Human Rights and of

articles 2, 9 and 26 of the International Covenant on Civil and Political Rights, is

arbitrary and falls within categories I and V.

38.

Consequent upon the opinion rendered, the Working Group requests the

Government of Trinidad and Tobago to take the steps necessary to remedy the situation of

Mr. Seepersad without delay and bring it into conformity with the standards and principles

set forth in the international norms on detention, including the Universal Declaration of

Human Rights and the International Covenant on Civil and Political Rights.

39.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to accord Mr. Seepersad an enforceable right to

compensation and other reparations, in accordance with international law.

40.

In accordance with paragraph 33 (a) of its methods of work, the Working Group

refers the present case to the Special Rapporteur on the rights of persons with disabilities

and the Special Rapporteur on the right of everyone to the enjoyment of the highest

attainable standard of physical and mental health.

41.

The Working Group also refers the present case to the focal point on reprisals of the

Coordination Committee of Special Procedures and to the Assistant Secretary-General for

Human Rights to lead the efforts of the United Nations to put an end to intimidation and

reprisals against those cooperating with it on human rights-related matters.

Follow-up procedure

42.

In accordance with paragraph 20 of its methods of work, the Working Group

requests the source and the Government to provide it with information on action taken in

follow-up to the recommendations made in the present opinion, including:

(a)

Whether compensation or other reparations have been made to Mr.

Seepersad;

(b)

Whether an investigation has been conducted into the violation of Mr.

Seepersad’s rights and, if so, the outcome of the investigation;

10 See A/HRC/33/19, para. 2.

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(c)

Whether any legislative amendments or changes in practice have been made

to harmonize the laws and practices of Trinidad and Tobago with its international

obligations in line with the present opinion;

(d)

Whether any other action has been taken to implement the present opinion.

43.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example, through a visit by the

Working Group.

44.

The Working Group requests the source and the Government to provide the above

information within six months of the date of the transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

45.

The Working Group recalls that the Human Rights Council has encouraged all

States to cooperate with the Working Group and requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.11

[Adopted on 20 November 2017]

11 See Human Rights Council resolution 33/30, paras. 3 and 7.