Winston Caesar v. Trinidad and Tobago, Case 12.147, Report No. 88/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 292 (2001).
TRINIDAD AND TOBAGO
October 10, 2001
On May 6, 1999, the Inter- American Commission on Human Rights (the
Commission) received a petition from Lovell, White, Durrant, a firm
of Solicitors in London, United Kingdom (the Petitioners) against
the Government of Trinidad and Tobago (Trinidad and Tobago or
the State). The petition
was presented on behalf of Mr. Winston Caesar, who is incarcerated at Carrera
Convict Prison, Port of Spain, Trinidad and Tobago.
The petition states that on January 10, 1992, Mr. Caesar was convicted
of attempted rape at the Port of Spain Assizes, Trinidad and Tobago.
He was sentenced to life imprisonment and fifteen strokes of the cat
onine tails, with a recommendation that he serve at least 20 years including
2. The petition alleged that the State is responsible for violations of Mr. Caesars rights under Articles 2, 5, 8 and 25 of the American Convention on Human Rights (the American Convention or the Convention). It stated in particular that the sentence of 15 strokes of the cat onine tails to which the victim was subjected and the conditions of his incarceration both represent breaches of Article 5 of the Convention, that Mr. Caesars inadequate representation at trial and the delay in bringing him to trial and in determining his appeal are violations of Article 8 of the Convention, and that the lack of effective recourse to a court or tribunal for protection of Mr. Caesars right to be tried without undue delay represents a breach of Articles 2 and 25 of the Convention.
As of the date of this report, the Commission had not received a response
from the State to Mr. Caesars petition.
As set forth in this Report, having examined the contentions of the
parties on the question of admissibility, and without prejudging the merits
of the matter, the Commission has decided to admit the claims in the present
petition pertaining to Articles 2, 5, 8 and 25 of the Convention and continue
with the analysis of the merits of the case.
PROCEEDINGS BEFORE THE COMMISSION
Following receipt of the Petitioners petition, on May 13, 1999
the Commission transmitted the pertinent parts of the petition to the State.
The Commission requested the States observations on the petition
within 90 days as established by the Commissions prior Regulations.
Also by note of the same date, the Commission informed the Petitioners that
the pertinent parts of their petition had been transmitted to the State and
that they would be advised of any reply that the State might make.
In a communication dated November 22, 1999, the Petitioners submitted
additional information regarding Mr. Caesars conditions of detention.
The Commission transmitted the pertinent parts of that communication
to the State in a communication dated November 29, 1999, requesting that information
relevant to the case be provided within 30 days.
By communication of December 6, 1999, the Government acknowledged receipt
of the Commissions communication dated November 29, 1999.
In a note dated July 11, 2000, the Commission reiterated to the State
its previous request for information relevant to the case within 30 days of
the Commissions communication.
As of the date of the present report, the Commission has not received
any information or observations from the State concerning Mr. Caesars
III. POSITIONS OF THE PARTIES
8. In relation to the admissibility of their complaint, the Petitioners claim that Mr. Caesar has exhausted his domestic remedies in Trinidad and Tobago, as required under Article 46(1) of the Convention and Article 31(1) of the Commissions Rules of Procedure. The Petitioners state that Mr. Caesar applied for leave to appeal against his conviction and sentence to the Court of Appeal of Trinidad and Tobago and his application was refused on February 28, 1996. Counsel in the United Kingdom was then instructed on the merits of an appeal to the Judicial Committee of the Privy Council, who subsequently advised Mr. Caesar on November 9, 1998 that an appeal to the Privy Council was unlikely to succeed and that his case did not merit the provision by Counsel of the certificate necessary to apply for Special Leave to Appeal to the Judicial Committee of the Privy Council as a Poor Person. The Petitioners argue that Mr. Caesar has now exhausted all effective domestic remedies available to him.
Furthermore, the Petitioners submit that due to lack of funding and
the fact that legal aid is not available for Constitutional Motions in Trinidad
and Tobago, Mr. Caesar is unable to pursue a Constitutional Motion before
domestic courts for the protection of his fundamental rights.
It is submitted that without expert legal representation in Trinidad,
Mr. Caesar would not have a realistic prospect of success in such a motion
due to the complex nature of the provisions of the Trinidadian constitution.
In respect of the timeliness of the petition, the Petitioners argue
that Mr. Caesar received legal advice from Counsel and from his solicitors
in the United Kingdom that his case did not merit the necessary Counsels
certificate to apply for Special Leave to Appeal to the Judicial Committee
of the Privy Council as a Poor Person.
He was informed of Counsels opinion by a letter from his solicitors
dated November 9, 1998. The Petitioners submit therefore that "final judgment"
in this case should be considered to have been delivered to Mr. Caesar no
earlier than November 9, 1998 and that, as his petition was lodged with the
Commission on May 9, 1999, Mr. Caesar has complied with the time limit specified
for lodging petitions in Article 46(1)(b) of the Convention and Article 32(1)
of the Commissions Rules of Procedure.
Also in relation to the admissibility of their complaint, the Petitioners
contend that the matters complained of in Mr. Caesars petition have
not previously been submitted for examination by any other procedure of international
investigation or settlement.
With respect to the merits of their complaints against the State, the
Petitioners claim the following:
The sentence of flogging with 15 strokes of the cat onine tails to which
the victim was subjected on February 5, 1998 was a violation of Article 5(1)
and 5(2) of the Convention. In
support of this claim, the Petitioners rely in part on the case of Tyrer v United Kingdom
in which the European Court of Human Rights concluded that a sentence
of three strokes of the birch passed on a 15 year old boy constituted
cruel, inhuman or degrading treatment.
The victims conditions of detention amount to a breach of Articles 5(1),
5(2) and 5(6) of the Convention. In
particular, the Petitioners claim that Mr. Caesar sleeps on a concrete floor
in a cell of dimensions 8 feet x 6 feet with a ventilation shaft of 2 feet
x 1 foot. His toiletry, food
and clothing allowances are limited. Since his incarceration, Mr. Caesar has contracted tuberculosis
and suffers from chronic hemorrhoids. The Petitioners also indicate that they are not aware of any
attempts by the State to reform Mr. Caesar or to readapt him socially.
The delay of more than 8 years in bringing Mr. Caesar to trial and more than
2 years in determining his application for leave to appeal represents a breach
of his right to a hearing within a reasonable time under Article 8(1) of the
The lack of an effective method available to the victim in Trinidad and Tobago
to complain of the undue delay in bringing him to trial contravenes Articles
2 and 25(1) of the Convention.
13. As indicated above, by communication dated December 6, 1999 the State acknowledged receipt of the Commissions note of November 29, 1999. Apart from this communication, however, the Commission has not received any information or observations from the State respecting Mr. Caesars petition.
of the Commission
The Republic of Trinidad and Tobago became a party to the American
Convention on Human Rights when it deposited its instrument of ratification
of that treaty on May 28, 1991.
Trinidad and Tobago subsequently denounced the American Convention
by notice given one year in advance on May 26, 1998 in accordance with Article
78 of the American Convention on Human Rights, which provides as follows:
The States Parties may denounce this Convention at the expiration of
a five-year period from the date of its entry into force and by means of notice
given one year in advance. Notice of
shall be addressed to the Secretary General of the Organization, who shall
inform the other States Parties.
(2) Such a denunciation shall not have the effect of releasing the State Party concerned from the obligations contained in this Convention with respect to any act that may constitute a violation of those obligations and that has been taken by that state prior to the effective date of denunciation.
By the plain terms of Article 78(2), states parties to the American
Convention have agreed that a denunciation taken by any of them will not release
the denouncing state from its obligations under the Convention with respect
to acts taken by that state prior to the effective date of the denunciation
that may constitute a violation of those obligations.
A state partys obligations under the Convention encompass not
only those provisions of the Convention relating to the substantive rights
and freedoms guaranteed thereunder.
They also encompass provisions relating to the supervisory mechanisms
under the Convention, including those under Chapter VII of the Convention
relating to the jurisdiction, functions and powers of the Inter-American Commission
on Human Rights.
Notwithstanding Trinidad and Tobagos denunciation of the Convention,
therefore, the Commission will retain jurisdiction over complaints of violations
of the Convention by Trinidad and Tobago in respect of acts taken by that
State prior to May 26, 1999. Consistent
with established jurisprudence,
this includes acts taken by the State prior to May 26, 1999, even if the effects
of those acts continue or are not manifested until after that date.
In respect of acts taken by the State wholly after May 26, 1999, the
State remains bound by the American Declaration of the Rights and Duties of
Man and the Commissions authority to supervise the States compliance
with that instrument, having deposited its instrument of ratification of the
OAS Charter on March 17, 1967 and thereby becoming an OAS member state.
In the present case, the Petitioners claim that the State has violated
Mr. Caesars rights under the American Convention.
The claims in the petition relate to acts alleged to have been taken
by the State prior to the effective date of its denunciation.
The alleged victim of the alleged violations is a natural person, and
his complaints relate to events alleged to have occurred in the territory
of Trinidad and Tobago. The Commission
is therefore competent to examine the alleged violations of the American Convention
on Human Rights presented in this petition.
According to the Petitioners, the matters complained of in this petition
have not previously been submitted for examination by any other international
organization. The State has not provided any observations on the issue of
duplication of procedures. The
Commission therefore finds that the petition is not inadmissible under Article
33(1) of its Rules of Procedure.
Exhaustion of Domestic Remedies
Article 46(1)(a) of the Convention and Article 31(1) of the Commissions
Rules of Procedure specify that, in order for a case to be admitted, remedies
under domestic law must have been pursued and exhausted in accordance with
generally accepted principles of international law.
Article 46(2) of the Convention and Article 31(2) of the Commissions
Rules of Procedure provide, however, that the exhaustion of domestic remedies
requirement shall not apply when the domestic legislation of the state concerned
does not afford due process of law for the protection of the right or rights
that have allegedly been violated, when the party alleging violation of his
rights has been denied access to the remedies under domestic law or has been
prevented from exhausting them, or when there has been unwarranted delay in
rendering a final judgment under domestic remedies.
Moreover, the jurisprudence of the inter-American system makes clear
that the rule which requires the prior exhaustion of domestic remedies is
designed for the benefit of the State, because the rule seeks to excuse the
State from having to respond to charges before an international body for acts
imputed to it before it has had an opportunity to remedy them by internal
means. According to the Inter-American
Court, the requirement is thus considered a means of defense and, as such,
waivable, even tacitly. Further,
a waiver, once effected, is irrevocable. In the face of such a waiver,
the Commission is not obliged to consider any potential bars to the admissibility
of a petitioners claims that might have properly been raised by a state
relating to the exhaustion of domestic remedies.
In the present case, the State has failed to provide any observations
or information respecting the admissibility of Mr. Caesars claims.
Nevertheless, based upon the extensive submissions provided by the
Petitioners, it is clear to the Commission that the States legislation
fails to afford due process for the protection of the rights alleged to have
been violated in the Petitioners petition or that Mr. Caesar has been
hindered from exhausting such remedies.
The record before the Commission indicates that Mr. Caesar was precluded
from pursuing his petition for Special Leave to Appeal to the Judicial Committee
of the Privy Council by reason of the advice by Counsel that his case was
unlikely to succeed and therefore did not merit the certificate necessary
to seek leave to appeal. The
State has not disputed these facts or otherwise demonstrated that remedies
for the matters complained of in the Petitioners petition are available
in fact or in law or have not been exhausted.
Based upon these circumstances, the Commission finds that the States
legislation fails to afford due process for the protection of the rights alleged
to have been violated in the Petitioners petition or that Mr. Caesar
has been hindered from exhausting such remedies.
Accordingly, the Commission concludes that that the exhaustion of domestic
remedies requirement does not apply in the circumstances of this case, and
therefore that the Petitioners claims are not barred under Article 46(1)(a)
of the Convention or Article 31(1) of its Rules of Procedure.
In accordance with Article 46(1)(b) of the Convention and Article 32(1)
of the Commissions Rules of Procedure, the Commission shall consider
those petitions that are lodged within a period of six months from the date
on which the complaining party was notified of the final judgment at the domestic
level. Article 46(2)(a) of the
Convention and Article 32(2) of the Commissions Rules of Procedure provide,
however, that in cases in which an exception to the exhaustion of domestic
remedies applies, the petition shall be presented within a reasonable time,
as determined by the Commission, considering the date on which the alleged
violation of rights occurred and the circumstances of each case.
As noted above, the Commission has concluded that the Petitioners are
exempted from the exhaustion of domestic remedies requirement in the circumstances
of this case. As a consequence,
the six-month period prescribed under the Convention and Rules is likewise
inapplicable to the Petitioners complaint.
Further, after considering the circumstances of Mr. Caesars case,
including in particular the fact that Mr. Caesar was not advised until November
9, 1998 of Counsels opinion on the merits in his case of a petition
for Special Leave to Appeal to the Judicial Committee of the Privy Council,
the Commission considers that his petition was lodged with the Commission
within a reasonable time in compliance with Article 32(2) of the Commissions
Rules of Procedure. Accordingly,
the Commission finds no bar to the admissibility of the petition under Article
46(1)(b) of the Convention and Article 32 of the Commissions Rules.
Articles 46(b) and 47(c) of the Convention and Articles 34(a) and (b)
of the Commissions Rules of Procedure require the Commission to consider
a petition to be inadmissible if the petition does not state facts that tend
to establish a violation of the rights guaranteed by the Convention or other
applicable instruments, or if the statements of the petitioner or of the state
indicate that the petition is manifestly groundless or obviously out of order.
The Petitioners allege that the State is responsible for violations
of Mr. Caesars rights under Articles 2, 5, 8 and 25 of the Convention
the particulars of which are summarized in Part III.A above.
The State has failed to provide any observations or information on
the violations alleged by Mr. Caesar.
Based upon the information provided by the Petitioners, and without
prejudging the merits of the matter, the Commission finds that the Petitioners
petition contains factual allegations, that, if proved, tend to establish
violations of the rights guaranteed by the Convention, and that the statements
of the Petitioners are not on the information provided manifestly groundless
or obviously out of order. Consequently,
the claims in the petition are not barred as inadmissible under Article 47(b)
and 47(c) of the Convention and Article 34(a) and (b) of the Commissions
Rules of Procedure.
The Commission concludes that it has the competence to examine this
case, and that the petition is admissible in accordance with Articles 46 and
47 of the Convention and Articles 31 to 34 of the Commissions Rules
On the basis of the findings of fact and law set forth above, and without
prejudging the merits of the matter,
THE INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS
To declare admissible the Petitioners claims as to the alleged
violations of Articles 2, 5, 8 and 25 of the Convention.
To give notice of this decision to the State and to the Petitioners.
3. To continue with the analysis of the merits of the case.
To publish this Report and include it in the Annual Report to the OAS
and signed in the city of Washington, D.C., the 10th day of the
month of October, 2001. (Signed):
Dean Claudio Grossman, President; Dr. Juan Méndez, First Vice-President; Lic.
Marta Altolaguirre, Second Vice-President; Prof. Hélio Bicudo, Prof. Robert
K. Goldman, Dr. Peter Laurie, and Dr. Julio Prado Vallejo, Commissioners.
its 109th special session in December 2000, the Commission
approved the Rules of Procedure of the Inter-American Commission on Human
Rights, which replaced the Commissions prior Regulations of April
8, 1980. Pursuant to Article
78 of the Commissions Rules of Procedure, the Rules entered into
force on May 1, 2001.
Eur. Court H.R., Tyrer v. United Kingdom, Judgment of 25 April 1978, Series
A, No. 26.
Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/I.4
rev.8 (22 May 2001), p. 48.
See similarly I/A Court H.R.,
Baruch Ivcher Bronstein v. Peru, Jurisdiction, Judgment (24 September
1999), para. 37 (noting that the obligations of States Parties to the
American Convention on Human Rights to guarantee compliance with its provisions
applies both to the substantive and procedural norms under the treaty).
According to the jurisprudence
of the Inter-American Court and Commission and that of other international
human rights tribunals, human rights instruments may properly be applied
in respect of acts that arose prior to the ratification of those instruments
but which are continuing in nature and whose effects persist after the
instruments entry into force. See
e.g. I/A Court H.R., Blake Case, Preliminary Objections, Judgment
of July 2, 1996, Series C No. 27, paras. 33-34 and 46; IACHR, João Canuto
de Oliveira v. Brazil, Report Nº
24/98, Annual Report of the IACHR 1997, paras. 13-18.
See similarly Eur. Court H.R., Papamichalopoulos et al. v. Greece,
June 24, 1993, Series A Nº
260-B, pp. 69-70, 46.
Statute of the IACHR, Article 20 (providing in respect of those OAS member
states that are not parties to the American Convention on Human Rights
that the Commission may examine communications submitted to it and any
other available information, to address the government of such states
for information deemed pertinent by the Commission, and to make recommendations
to such states, when it finds this appropriate, in order to bring about
more effective observance of fundamental human rights). See
also I/A Court H.R., Advisory Opinion OC-10/89 Interpretation of the
American Declaration of the Rights and Duties of Man Within the Framework
of Article 64 of the American Convention on Human Rights, July 14, 1989,
Nº 10 (1989), paras. 35-45;
I/A Comm. H.R., James Terry Roach and Jay Pinkerton v. United States,
Case 9647, Res. 3/87, 22 September 1987, Annual Report 1986-87, paras.
I/A Court H.R.,
Loayza Tamayo Case, Preliminary
Objections, Judgment of January 31, 1996, Series C No. 25, para. 40.