Communication
No. 728/1996*
Submitted by: Mrs.
Margaret Paul (Mr. Sahadeo's sister)
Alleged victim: Mr. Terrence Sahadeo
State party: Republic of Guyana
Date of communication: 10 November 1996 (initial submission)
The Human Rights Committee, established under article 28 of
the International Covenant
on Civil
and Political Rights,
Meeting on 1 November 2001,
Having concluded its consideration of communication No. 728/1996,
submitted to the Human Rights Committee by Mrs. Margaret Paul (Mr.
Sahadeo's sister), 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, and the State party,
Adopts
the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The author
of the communication is Mrs. Margaret Paul. She submits the communication
on behalf of her brother Terrence Sahadeo, a Guyanese citizen, awaiting
execution in Georgetown prison in Guyana. She claims that her brother
is an alleged victim of human rights violations by Guyana. Although
she does not invoke any specific articles of the Covenant, the communication
appears to raise issues under articles 7, 9, 10 and 14 of the Covenant.
The
facts as submitted by the author
2.1 On 18
September 1985, Mr. Terrence Sahadeo, a friend called Mutez Ali, and
the latter's girlfriend, Shireen Khan, were arrested in Berbice, Guyana,
for the murder of one Roshanene Kassim committed earlier the same
day.
2.2 The author
states that Mr. Sahadeo and his co-accused were convicted and sentenced
to death on 8 November 1989, four years and two months after their
arrest. Apparently, two prior trials, in June 1988 and February 1989,
had been aborted. On appeal, heard in 1992, a retrial was ordered.
On 26 May 1994, Mr. Sahadeo and his co-accused were again convicted
and sentenced to death. In 1996, their appeal was dismissed and the
sentence confirmed.
2.3 From
the incomplete notes of evidence of the retrial in 1994 submitted
by the alleged victim, it appears that the case for the prosecution
was that Terrence Sahadeo and Mutez Ali, according to a common plan
including also Ms. Kahn, went to the house of the deceased in order
to rob her. The alleged victim and Mr. Ali tied her up and put a knife
through her throat. One witness for the prosecution testified at the
trial that, in the morning of the incident, she had overheard that
Ms. Kahn, in the presence of the accused, had inquired a little girl
about who would be in the house of the deceased. They were told that
Roshanene Kassim would be in the house by herself. Ms. Kahn then told
the two other accused to go and see what they could get. The witness
testified that, through a window two houses away, she saw Ms. Kassim
in the house and the two men enter and return about fifteen minutes
later. She stated further that Mr. Sahadeo had blood on his hands
that he washed away and that he handed over jewellery to Ms. Kahn.
During her cross-examination the witness stated that she was held
for two days by the police and tried to contact a lawyer, since she
felt she was held against her will, before she made her statement.
2.4 The only
other evidence against Mr. Sahadeo was his confession and other statements
given by the investigating police officers. At the retrial in 1994,
the voluntariness of the statement was challenged by the defence and
examined in a voir dire. Mr. Sahadeo claimed that during police
investigation in 1985 he was beaten by three policemen and that one
policeman hit him on the toe with a small hammer. He then signed the
statement. The prison doctor testified that when Mr. Sahadeo was admitted,
he complained that he had been beaten on the back. When the doctor
examined him, he found no injuries on his back, but discovered a toe
injury, for which he gave him antibiotics. After the voir dire,
the judge ruled the statement admissible.
2.5 The investigating
police officers stated in the retrial in 1994 that the alleged victim
was arrested, since he was found outside the house next to Kassim's
with scratches on the upper part of his body. The officers denied
having used force or threats when questioning the alleged victim and
asserted that Mr. Sahadeo has received regular meals during his detention.
2.6 In a
statement from the dock, Mr. Sahadeo denied having anything to do
with the murder and stated that he had been beaten in order to force
him to sign the confession on the third day after his arrest. It is
submitted that after Mr. Sahadeo was arrested, he was taken to a doctor,
who, after an examination of the alleged victim, issued a medical
certificate to the police that he did not find any injuries on his
body. The author further submits that the alleged victim was deprived
of any food until the day after he made the confession.
The
complaint
3.1 The author
claims that her brother is innocent and that her brother and his friends
were arrested only because they were strangers in the village, where
they were spending a holiday. At the police station, Mr. Sahadeo was
allegedly beaten and hit on his toenails with a small hammer so that
signed a prepared statement out of fear of further ill treatment.
3.2 According
to the author, there was no evidence to convict her brother. The medical
certificate and the police file were all missing when the trial against
her brother started, and the only evidence was the confession and
the testimony given by one witness. The author claims that the witness
first gave a statement to the police in which she did not inculpate
her brother, but that she gave a second statement after having been
in custody for two days without access to a lawyer. The author further
alleges that the judge was biased, because she asked questions of
the witnesses to assist the Prosecution and made contemptuous remarks.
This is said to constitute miscarriage of justice.
3.3 Finally,
it is claimed that the length of the procedure in the case has caused
mental anguish.
Committee's
decision on admissibility
4. On 21
November 1996, the Committee requested the State party to provide
information about the admissibility of the communication. Under rule
86 of the Committee's rules of procedure, the State party was also
requested not to carry out the death sentence against Mr. Sahadeo.
5. By note
of 30 June 1998, the State party informed the Committee that it had
no objection to admissibility, as Mr. Sahadeo had exhausted all available
domestic remedies.
6.1 In its
64th session, the Committee considered the admissibility of the communication.
6.2 The Committee
ascertained, as required under article 5, paragraph 2(a), of the Optional
Protocol, that the same matter was not being examined under another
procedure of international investigation or settlement.
6.3 With
regard to the claim that there was not sufficient evidence against
Mr. Sahadeo to convict him, the Committee referred to its prior jurisprudence
and reiterated that it is generally not for the Committee, but for
the courts of States parties, to review the evidence against an accused,
unless it can be ascertained that the evaluation of the evidence was
manifestly arbitrary or amounted to a denial of justice. The material
before the Committee and the author's allegations did not show that
this was the case in Mr. Sahadeo's trial. Accordingly, this part of
the communication was inadmissible as the author has failed to forward
a claim within the meaning of article 2 of the Optional Protocol.
6.4 With
respect to the author's claim that the judge was biased, the Committee
noted that the author has failed to provide any specific information
in substantiation of this claim. This part of the communication was,
therefore, declared inadmissible under article 2 of the Optional Protocol,
for not having been substantiated for purposes of admissibility.
6.5 The Committee
considered that the author's remaining claims were admissible and
should be considered on the merits as they may raise issues under
articles 9, paragraph 3, and 14, paragraph 3(c), in relation to the
length of the proceedings, and under articles 7 and 14, in relation
to the circumstances in which the confession was signed.
7. On 23
October 1998, the Human Rights Committee, therefore, decided that
the communication is admissible in so far as it may raise issues under
articles 7, 9, paragraph 3, and 14 of the Covenant.
Issues
and proceedings before the Committee
8.1 On 27
November 1998, 22 September 2000 and 24 July 2001, the State party
was requested to submit to the Committee information on the merits
of the communication. The Committee notes that this information has
still not been received.
8.2 The Committee
regrets that the State party has not provided any information with
regard to the substance of the author's claims. The Committee recalls
that it is implicit in the Optional Protocol that States parties make
available to the Committee all information at their disposal. In the
absence of a reply from the State party, due weight must be given
to the author's allegations, to the extent that they are substantiated.
( Communication No. 760/1997, J.G.A. Diergaardt et al. V Namibia,
para. 10.2.)
9.1. The
Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties,
as provided in article 5, paragraph 1 of the Optional Protocol.
9.2 With
regard to the length of the proceedings, the Committee notes that
the alleged victim was arrested on 18 September 1985 and remained
in detention until he was first convicted and sentenced to death on
8 November 1989, four years and two months after his arrest. The Committee
recalls that article 9, paragraph 3, of the Covenant entitles an arrested
person to trial within a reasonable time or to release. Paragraph
3 (c) of article 14 provides that the accused shall be tried without
undue delay. The Committee recalls that, if criminal charges are brought
in cases of custody and pre-trial detention, the full protection of
article 9, paragraph 3, as well as article 14, must be granted. With
respect to the alleged other delays in the criminal process, the Committee
notes that the Mr. Sahadeo's appeal was heard from the end of April
to the beginning of May 1992 and, upon retrial, the alleged victim
was again convicted and sentenced to death on 26 May 1994, two years
and one month after the judgment of the Court of Appeal. In 1996,
the appeal against that decision was dismissed and the sentence confirmed.
The Committee finds that, in the absence of a satisfactory explanation
by the State party or other justification discernible from the file,
the detention of the author awaiting trial constitutes a violation
of article 9, paragraph 3, of the Covenant and a further separate
violation of article 14, paragraph 3 (c).
9.3 With
regard to the circumstances in which the confession was signed, the
Committee notes that Mr. Sahadeo identified those he holds responsible;
further details of his allegations appear from the notes of evidence.
The Committee recalls the duty of the State party to ensure the protection
against torture and cruel, inhuman or degrading treatment as provided
for in article 7 of the Covenant. The Committee considers that it
is important for the prevention of violations under article 7 that
the law must exclude the admissibility in judicial proceedings of
statements or confessions obtained through torture or other prohibited
treatment. The Committee observes that Mr. Sahadeo's allegations of
torture had been dealt with during the first trial in 1989 and again
in the retrial in 1994. It appears from the notes of evidence of the
retrial that Mr. Sahadeo had the opportunity to give evidence and
that witnesses of his treatment during his detention by the police
were cross-examined. The Committee recalls that it is in general for
the courts of States parties, and not for the Committee, to evaluate
the facts in a particular case. The information before the Committee
and the arguments advanced by the author do not show that the Courts'
evaluation of the facts were manifestly arbitrary or amounted to a
denial of justice. In the circumstances, the Committee finds that
the facts before it do not sustain a finding of a violation of article
7 and article 14, paragraph 3 (g), of the Covenant in relation to
the circumstances in which the confession was signed.
10. 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
9, paragraph 3; and 14, paragraph 3 (c), of the Covenant.
11. The Committee
is of the view that Mr. Sahadeo is entitled, under article 2, paragraph
3 (a), to an effective remedy, in view of the prolonged pretrial detention
in violation of article 9, paragraph 3, and the delay in the subsequent
trial, in violation of article 14, paragraph 3 (c), entailing a commutation
of the sentence of death and compensation under article 9, paragraph
5, of the Covenant. The State party is under an obligation to take
appropriate measures to ensure that similar violations do not occur
in the future.
12. On becoming
a State Party to the Optional Protocol, Guyana recognized the competence
of the Committee to determine whether there has been a violation of
the Covenant or not. Pursuant to article 2 of the Covenant, the State
party has undertaken to ensure to all individuals within its territory
or subject to its jurisdiction the rights recognized in the Covenant
and to provide an enforceable effective 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.
___________________
* The following members of the Committee participated in the examination
of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando,
Mr. Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Mr.
Maurice Gl�l� Ahanhanzo, Mr. Louis Henkin, Mr. Ahmed Tawfik Khalil,
Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Mr. Rafael
Rivas Posada, Sir Nigel Rodley, Mr. Martin Scheinin, Mr. Ivan Shearer,
Mr. Hip�lito Solari Yrigoyen and Mr. Maxwell Yalden.
** The text
of two individual opinions signed by Committee members: Mr. Martin
Scheinin and Mr. Hip�lito Solari Yrigoyen are appended to the present
document.
Adopted in English, French and Spanish, the English text being the
original version. Subsequently to be issued in Arabic, Chinese and
Russian as part of the Committee's annual report to the General Assembly.
Appendix
Individual
Opinion by Committee Member, Mr. Martin Scheinin
(partly dissenting)
I share the view of the majority on two important points: (a) that
the Covenant was violated in the course of the criminal case against
Mr Sahadeo, resulting in the imposition of capital punishment and
(b) that, as a result, the obligation of the State party under article
2 (3) of the Covenant to afford an effective remedy must entail that
the victim is allowed to preserve his life. As prescribed in article
6 (2) of the Covenant, capital punishment may never be imposed through
a procedure that entails a violation of the Covenant.
Where I dissent
is the majority's approach to what conclusions should be drawn from
how the confession statement was handled in the course of the judicial
proceedings. Before the Committee Mr Sahadeo, who is on death row
in Georgetown prison, was represented by his sister, a lay person.
As the State party has not provided the Committee with any information
whatsoever, except its blanket consent to the admissibility of all
aspects of the communication, I take the approach that the incomplete
nature of the file cannot be held against Mr Sahadeo.
It is generally
for the courts of States parties and not for the Committee to review
the evidence against an accused. However, in the present case it appears
from the incomplete materials submitted to the Committee that when
presenting the evidence related to the credibility of Mr Sahadeo's
testimony that he signed the confession statement under ill-treatment,
the presiding judge used language that was prejudicial to the defendant.
For instance, he referred to Mr Sahadeo's colour of skin as basis
for an inference that ill-treatment would have left marks that would
have been visible in the medical inspection that took place afterwards,
in addition to the bruise on the toe that was recorded. As the court,
consequently, did not address the issue of possible coercion and ill-treatment
in a proper way in a case that lead to the imposition of capital punishment,
I find that there has been a violation of articles 7 and 14 of the
Covenant.
Signed Martin
Scheinin
