Submitted by: Mr. Boodlal
Sooklal (represented by counsel, Ms. Natalia Schiffrin, Interights)
Alleged victim: The
author
State Party: Trinidad
and Tobago
Date of communication:
2 February 2000 (initial submission)
The Human Rights Committee, established under article 28 of the
International Covenant on Civil and Political Rights,
Meeting on 25 October 2001,
Having concluded its consideration
of communication No. 928/2000, submitted to the Human Rights Committee
by Mr. Boodlal Sooklal 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, submitted on 2 February 2000, is Boodlal
Sooklal, a citizen of Trinidad and Tobago, currently serving 50 years
of concurrent sentences in a prison in Trinidad and Tobago. He claims
to be a victim of violations of articles 9, paragraph 3, and 14, paragraph
3 (c) and (d), and paragraph 5, of the International Covenant on Civil
and Political Rights. He is represented by counsel.
The facts as submitted by the author
2.1 In May 1989, the author
was arrested and charged with the offences of sexual intercourse and
serious indecency with minors. Following a preliminary inquiry in June
1992, he was released on bail on 27 July 1992. The author was held in
custody from the time of his arrest to his release on bail, over three
years after his arrest.
2.2 In February 1997, the
author was tried in the High Court, where he pleaded not guilty. He
was represented by a legal aid lawyer. He was convicted and sentenced
to 12 strokes with the birch, as well as 50 years of concurrent sentences,
equivalent to a sentence of 20 years after remission.
2.3 The author lodged an
appeal, which came up for hearing at the Court of Appeal on 19 November
1997. He did not receive any advice from his legal aid lawyer regarding
this appeal, and did not meet with his lawyer prior to the hearing.
During the proceedings, the author's lawyer, told the court that she
could not find any grounds for pursuing the appeal. Consequently, leave
to appeal was refused and the sentence was re-affirmed.
2.4 According to counsel,
the author cannot afford to hire a lawyer privately to take a constitutional
action in relation to this case and has been unable to find counsel
to do so on a pro bono basis. Counsel also states that even if the author
were to find someone to represent him, the Constitution of Trinidad
and Tobago does not guarantee a speedy trial or a right to a trial within
a reasonable time and therefore no constitutional remedy for the delays
would be effective in the circumstances.
The complaint
3.1 Counsel claims that
the author is a victim of violations of articles 9, paragraph 3, and
14, paragraph 3 (c), as he was held in detention for an unreasonable
time awaiting trial and was not tried without undue delay.
3.2 Counsel refers to the
Committee's jurisprudence in particular, its decision in Steadman
v. Jamaica,(1) at which the Committee held that in the absence
of any reasons from the State party explaining its behaviour, a delay
of approximately 27 months between the date of the applicant's arrest
and the date of trial amounted to a violation of the State's obligations
under articles 9, paragraph 3, and 14, paragraph 3 (c), to bring the
accused to trial without undue delay.
3.3 Counsel submits that
the facts of this case are not complex and it involves a limited number
of witnesses and few allegations. Thus, counsel argues, it is not the
type of case where a delay can be justified due to a complex factual
situation. Counsel also submits that none of the delay in this case
can be attributable to the author, who was in fact anxious to have his
case heard as soon as possible.
3.4 Counsel submits that
the State party is responsible for the entirety of the delay. She argues
that, without explanation, the prosecution and judicial authorities
subjected the author to a delay of approximately three years before
conducting a preliminary inquiry into his case, and to a further delay
of four years and nine months before bringing his case to trial. In
addition, no reasons were given for detaining him in custody rather
than releasing him with the requirement to reappear at trial, as required
under article 9, paragraph 3 of the Covenant. According to counsel,
the lapse of time of nearly eight years between the author's arrest
and trial, is even greater than the period of pre-trial delay held in
Steadman v. Jamaica, which the Committee considered unreasonable.
3.5 Furthermore, counsel
submits, that nearly nine years after the incidents in question,(2)
the fairness of the author's trial was severely prejudiced, due to the
likelihood that witnesses called at the trial were less accurate in
their recollection of events. In this regard, counsel notes that two
of the witnesses were 10 and 12 years of age at the time of the events
in question. She submits that it is unlikely that when they were close
to 20 years of age, they could accurately testify to events in their
childhood.
3.6 Counsel also claims
that the author is a victim of a violation of article 14, paragraph
3 (d), of the Covenant, as he did not receive effective legal representation.
In this regard, counsel submits that the author's lawyer declared to
the Court of Appeal that she could find no grounds for an appeal, even
though clear grounds did exist, in particular, the fact that the author
had suffered a delay of nearly eight years awaiting trial and that this
factor had apparently not been considered by the trial judge in his
determination of the case.
3.7 Counsel submits that
the right to effective representation is an inherent component in the
right to a fair trail and the right to an appeal. She refers to the
Committee's Views in Kelly v. Jamaica,(3) in which the Committee
noted "measures must be taken to ensure that counsel, once assigned,
provides effective representation in the interests of justice."
3.8 Counsel submits that
the Committee has affirmed on several occasions that where counsel for
an accused decides that there are no grounds for an appeal, he should
consult with the accused and inform him in advance of his intention
to withdraw the appeal.(4) This duty to inform the accused also
extends to the court hearing the appeal. Counsel submits that in the
case of Steadman v. Jamaica, in which the accused's lawyer told
the court that there were no grounds for appeal, the Committee took
the view that it could not question counsel's professional judgement,
but added that "the Court should ascertain whether counsel has
consulted with the accused and informed him accordingly. If not, the
Court must ensure that the accused is so informed so that he can consider
any other remaining options open to him".
3.9 Counsel submits, that
when the author's lawyer informed the Court that she could find no grounds
to appeal the conviction, she was effectively withdrawing the author's
appeal without the author being informed and, consequently, without
his consent. Lastly, she states that there is no indication that the
Court of Appeal made an inquiry as to whether the author had been duly
advised of his counsel's intentions to withdraw the appeal. Counsel
refers to the Committee's jurisprudence(5) in this regard and
submits that these factors reveal a violation of the author's rights
under article 14, paragraph 3 (d) as well as article 14, paragraph 5
of the Covenant.
3.10 Although counsel did
not specifically raise an allegation of a violation of any of the rights
protected under the Covenant with respect to the sentence of 12 strokes
of the birch, the facts of the case raise an issue under article 7 of
the Covenant.
Issues and proceedings
before the Committee
4.1 The communication with
its accompanying documents was transmitted to the State party on 17
May 2000. The State party has not responded to the Committee's request,
under rule 91 of the rules of procedure, to submit information and observations
in respect of the admissibility and merits of the communication, despite
several reminders addressed to it. The Committee recalls that it is
implicit in article 4, paragraph 2, of the Optional Protocol, that a
State party examine in good faith all the allegations brought against
it, and that it provide the Committee with all the information at its
disposal. In light of the failure of the State party to cooperate with
the Committee on the matter before it, due weight must be given to the
author's allegations, to the extent that they have been substantiated.
4.2 Before considering the
claims contained in the communication, the Human Rights Committee must,
in accordance with rule 87 of the rules of procedure, decide whether
or not it is admissible under the Optional Protocol to the Covenant.
4.3 The Committee notes
that at the time of submission, Trinidad and Tobago was a party to the
Optional Protocol. The withdrawal by the State party from the Optional
Protocol on 27 March 2000, with effect as of 27 June 2000, does not
affect the competence of the Committee to consider this communication.
4.4 The Committee has ascertained,
as required under article 5, paragraph 2 (a), of the Optional Protocol,
that the matter is not being examined under another procedure of international
investigation or settlement. With respect to the exhaustion of domestic
remedies, the Committee notes that the State party has not claimed that
there are any domestic remedies yet to be exhausted by the author and
has not raised any other objection to the admissibility of the claim.
On the information before it, the Committee is of the view that the
communication is admissible and proceeds to a consideration of the merits.
4.5 The Human Rights Committee
has considered the present communication in light of all the information
made available to it by the parties, as provided in article 5, paragraph
1, of the Optional Protocol.
4.6 The Committee notes
that the author was sentenced to 12 strokes of the birch and recalls
its decision in Osbourne v. Jamaica(6) in which it decided
that irrespective of the nature of the crime that is to be punished,
however brutal it may be, it is the firm opinion of the Committee that
corporal punishment constitutes cruel, inhuman or degrading treatment
or punishment contrary to article 7 of the Covenant. In the present
case, the Committee finds that by imposing a sentence of whipping with
the birch, the State party has violated the author's rights under article
7.
4.7 The Committee notes
counsel's contention that the State party has violated article 9, paragraph
3, as the author was held in detention for an unreasonable time prior
to his trial. The State party did not provide any justification for
the author's detention and its duration. The Committee notes that the
author spent three years in detention prior to release on bail and considers,
therefore, that the State party has violated article 9, paragraph 3,
of the Covenant.
4.8 As to counsel's contention
that the State party has violated article 14, paragraph 3 (c), as the
author's trial was not held within a reasonable time after he was charged,
the Committee notes that the author waited for a period of seven years
and nine months from the time of his arrest to the date of his trial.
The State party has provided no justification for this delay. In the
circumstances, the Committee considers that this is an excessive period
of time and, therefore, that the State party has violated article 14,
paragraph 3 (c), of the Covenant.
4.9 The Committee notes
counsel's contention that, because of the delay of seven years and nine
months from the date of the author's arrest to his trial, the witnesses
could not have been expected to testify accurately to events alleged
to have taken place nine years previously, and that the fairness of
the trial was seriously prejudiced. As it appears from the file that
issues related to the credibility and assessment of the evidence were
addressed by the High Court, the Committee takes the view that the effect
of the delay on the credibility of the witnesses testimonies does not
give rise to a finding of a violation of the Covenant that would be
separate from the conclusion reached above under article 14, paragraph
3 (c).
4.10 With regard to an alleged
violation of article 14, paragraph 3 (d), the Committee notes that the
State appointed defence counsel conceded that there were no grounds
for appeal. The Committee, however, recalls its prior jurisprudence(7)
and is of the view that the requirements of fair trial and of representation
require that the author be informed that his counsel does not intend
to put arguments to the Court and that he have an opportunity to seek
alternative representation, in order that his concerns may be ventilated
at appeal level. In the present case, it does not appear that the Appeal
Court took any steps to ensure that this right was respected. In these
circumstances, the Committee finds that the author's right under article
14, paragraph 3 (d), has been violated.
4.11 The Committee is of
the view that the same facts as referred to in paragraph 4.10 do not
raise a separate issue under article 14, paragraph 5 of the Covenant.
5. 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 as found by the Committee
reveal violations by Trinidad and Tobago of articles 9, paragraph 3,
14, paragraph 3 (c) and (d), and article 7 of the Covenant.
6. Pursuant to article 2,
paragraph 3 (a), of the Covenant, the author is entitled to an effective
remedy entailing compensation and the opportunity to lodge a new appeal,
or should this no longer be possible, to due consideration of granting
him early release. The State party is under an obligation to ensure
that similar violations do not occur in the future. If the corporal
punishment imposed on the author has not been executed, the State party
is under an obligation not to execute the sentence.
7. Bearing in mind that,
by becoming a party to the Optional Protocol, the State party has 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 90 days, information about the measures
taken to give effect to the Committee's Views.
________________
* The following members of the Committee participated in the examination
of the present communication: 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, Ms. Cecilia Medina Quiroga, Mr. Rafael Rivas Posada,
Sir Nigel Rodley, Mr. Martin Scheinin, Mr. Ivan Shearer, Mr. Hip�lito
Solari Yrigoyen and Mr. Maxwell Yalden.
[Adopted in English, French and Spanish, the English text being the
original version. Subsequently to be translated also in Arabic, Chinese
and Russian as part of the Committee's annual report to the General
Assembly.]
Notes
1. Communication No. 528/1993.
2. She does not say when
the incidents occurred.
3. Communication No. 253/1987.
4. Counsel refers to Kelly
v. Jamaica, No. 253/1987, and Wright and Harvey v. Jamaica,
No. 459/1991.
5. Counsel refers to the
case of Pinkney v. Canada, Communication No. 7/1978, where the
applicant suffered a delay of over two years in receiving his trial
transcript, and consequently alleged a violation of his right to a trial
within a reasonable time as well as his right to an appeal. According
to counsel, the Committee held that the right to be tried without undue
delay should be applied in conjunction with the right to review by a
higher tribunal and that consequently there was a violation of both
of these provisions taken together.
6. Communication No. 759/97.
7. In the following cases,
the Committee decided that the withdrawal of an appeal without consultation,
would amount to a violation of article 14, paragraph 3 (d) of the Covenant:
Collins v. Jamaica (356/89), Steadman v. Jamaica (528/93),
Smith and Stewart v. Jamaica (668/95), Morrison and Graham
v. Jamaica (461/91), Morrison v. Jamaica (663/95), McLeod
v. Jamaica (734/97), Jones v. Jamaica (585/94).
