Balkissoon Roodal v. Trinidad and Tobago, Case 12.147, Report No. 89/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 300 (2001).
REPORT No. 89/01
1. On November 8, 2000, the Inter-American Commission on Human Rights (the Commission) received a petition from Saul Lehrfreund of the London, United Kingdom law firm of Simons Muirhead & Burton (the Petitioners) against the Republic of Trinidad and Tobago (Trinidad and Tobago or the State). The petition was presented on behalf of Mr. Balkissoon Roodal, a death row inmate in the Republic of Trinidad and Tobago.
The petition alleged that the State tried and convicted Mr. Roodal
for the crime of murder and sentenced him to death by hanging on July 15,
1999 under Trinidad and Tobagos Offences
Against the Person Act.
The petition also alleged that the State is responsible for violating Mr.
Roodals rights under Articles I, II, XVIII, XXV and XXVI of the American
Declaration on the Rights and Duties of Man (the American Declaration
or the Declaration) in connection with the criminal proceedings
against him based upon the following grounds:
violations of Articles I, II, XVIII and XXVI of the American Declaration,
relating to the mandatory nature of the death penalty that was imposed upon
violations of Articles XVIII and XXVI of the American Declaration,
because the prosecution failed to give full disclosure of the convictions
of the prosecution witnesses to the defense and therefore deprived Mr. Roodal
of a fair trial;
violations of Articles XVII and XXV of the American Declaration, relating
to the delay in trying Mr. Roodal;
violations of Article XXVI of the American Declaration, relating to
Mr. Roodals treatment and conditions while in detention;
violations of Articles XVII and XXVI of the American Declaration, relating
to the denial of access to court and to an effective remedy for violations
of Mr. Roodals human rights.
As of the date of this report, the Commission had not received a response
from the State to Mr. Roodals petition.
4. 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 in respect of Articles 1, 2, 4, 5, 7, 8 and 25 of the American Convention on Human Rights (the American Convention or the Convention) and Articles I, II, XVII, XVIII, XXV and XXVI of the American Declaration and continue with the analysis of the merits of the case.
Petitions and Observations
5. Following receipt of Mr. Roodals petition, on November 13, 2000 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 in the Commissions prior Regulations.
6. By note dated November 16, 2000, which was received by the Commission on November 20, 2000, the State acknowledged receipt of the Commissions communication dated November 13, 2000.
7. In a communication dated September 14, 2001, the Petitioners submitted to the Commission additional information pertaining to Mr. Roodals complaint, including an affidavit sworn by Mr. Roodal on July 26, 2001. By note dated September 18, 2001, the Commission transmitted the pertinent parts of the Petitioners September 14, 2001 submissions to the State, with a request for a response within 20 days.
8. As of the date of this report, the Commission has not received any information or observations from the State respecting Mr. Roodals complaint.
Contemporaneously with the transmission of the pertinent parts of Mr.
Roodals petition to the State, the Commission requested the State to
take precautionary measures pursuant to Article 29 of its prior Regulations
to stay Mr. Roodals execution pending the Commissions investigation
of the allegations in his petition.
This request was made on the basis that if the State was to execute
Mr. Roodal before the Commission had an opportunity to examine his case, any
eventual decision would be rendered moot in terms of available remedies and
Mr. Roodal would suffer irreparable harm.
The Commission did not receive a response from the State to its request
for precautionary measures.
POSITIONS OF THE PARTIES
Position of the Petitioners
1. Background to the Complaint
According to the record in this case, Balkissoon Roodal was arrested
and charged with the murder of Philbert Charles during the period from August
19 to August 20, 1995. Mr. Roodals trial took place between July 2 and July
25, 1999. On July 15, 1999, Mr.
Roodal was convicted of murder and sentenced to death by hanging under the
Offenses Against the Person Act. He
subsequently appealed his conviction to the Court of Appeal of Trinidad and
Tobago, which dismissed his appeal on April 7, 2000.
Mr. Roodal then lodged a petition for Special Leave to Appeal as a
Poor Person to the Judicial Committee of the Privy Council, which dismissed
his petition on November 2, 2000.
The murder for which Mr. Roodal was convicted arose out of an attempt
by the deceased Philbert Charles and several accomplices to steal marijuana
that the prosecution alleged had been illegally cultivated by Mr. Roodal at
a camp in the Charuma Forest. The
prosecutions case was based upon a shotgun recovered by the police from
Mr. Roodals home, as well as testimony given at trial by two of Mr.
Charles accomplices, Selwyn Simmonds and Andrew Kenhai, and several
investigating police officers.
In his defense, Mr. Roodal contended that he was the victim of a mistaken
identity and that the evidence given by Selwyn Simmonds and Andrew Kenhai
was not credible. Mr. Roodal relied in this regard on a statement given by Andrew
Kenhai in which he claimed not to have seen anyone in the area.
Mr. Roodal also relied on the possibility that he had been mistaken
for his brother. This argument
was based upon evidence from Selwyn Simmonds that he had visited the camp
before and that it was Mr. Roodals brother, and not Mr. Roodal, who
had planted the marijuana in the forest.
Petitioners Position on the Commissions Competence
13. The Petitioners
indicate in their petition that although the Republic of Trinidad and Tobago
denounced the American Convention on Human Rights on May 26, 1998 which came
into effect one year later pursuant to Article 78 of the American Convention,
Trinidad and Tobago remains responsible for violations of rights under the
American Declaration of the Rights and Duties of Man.
14. In alleging that the Commission is competent to entertain these alleged violations of the Declaration, the Petitioners cite the Inter-American Court of Human Rights Advisory Opinion OC-10/89 dated July 14, 1989, in which the Court held that the American Declaration is the text that defines the human rights referred to in the Charter of the Organization of American States and that, as a consequence, it constitutes a source of obligation for OAS member states.
Further, the Petitioners indicate that they have cited and relied upon
provisions of the American Convention on Human Rights in making their arguments
under the American Declaration, based upon their submission that the Commission
has taken the view that in interpreting the rights protected by the American
Declaration it will employ the most acceptable doctoring which
is that set forth in the more detailed provisions of the American Convention
on Human Rights. In further support
of this approach, the Petitioners cite Article 29(d) of the American Convention,
which provides that no provision of this Convention shall be interpreted
excluding or limiting the effect of the American Declaration
Petitioners Position on Admissibility
16. In relation to the admissibility of their complaint, the Petitioners claim that Mr. Roodal has exhausted all available domestic remedies as required under Article 31 of the Commissions Rules of Procedure. They contend that Mr. Roodal unsuccessfully appealed his conviction to the Trinidad and Tobago Court of Appeal, and sought Special Leave to Appeal as a Poor Person to the Judicial Committee of the Privy Council, the highest appellate body in Trinidad and Tobago, which denied the petition on November 2, 2000.
17. Further, the
Petitioners indicate that Mr. Roodal has not pursued a Constitutional Motion
in the domestic courts of Trinidad and Tobago because of Mr. Roodals
lack of private means and the unavailability of legal aid for such motions.
18. In addition and in the alternative, the Petitioners claim that the Constitution of Trinidad and Tobago is drafted so as to immunize from attack existing laws that were lawful before Independence. According to the Petitioners, these provisions have the effect of freezing in time colonial legislation which, without exception, authorize the mandatory death penalty. It is therefore not possible to argue in any domestic court that the death penalty is unconstitutional because of its mandatory nature or because it is cruel, unless the way it is to be carried out would not have been lawful before Independence. As a consequence, the Petitioners claim that arguments about whether or not the mandatory death penalty is lawful can only be made before the Commission under the American Declaration.
19. Also according to the Petitioners, the subject matter of Mr. Roodals case has not been submitted for examination under any other procedure of international investigation or settlement.
20. With respect to the merits of their petition, the Petitioners present 5 main claims:
the State is responsible for violations of Articles I, II, XVIII and XXVI
of the American Declaration by sentencing Mr. Roodal to a mandatory death
penalty for the crime of murder. In
particular, the Petitioners argue that the mandatory death sentence imposed
by the penal law of Trinidad and Tobago on every person convicted of the crime
of murder violates the right to life under Article I of the Declaration and
involves the imposition of cruel, infamous or unusual punishment.
They further contend that the absence of any hearing to reach an objective
and proportionate decision on whether the death penalty should be imposed
on the facts of his case violates his right to equality before the law and
deprives him of a fair trial on the question of whether he should be executed.
The State is responsible for violations of Mr. Roodals right to have
the legality of his detention ascertained without delay by a court, as well
as his right to a fair and speedy trial under Articles XVIII and XXV of the
American Declaration based upon the period of delay between Mr. Roodals
arrest and trial. The Petitioners
contend that Mr. Roodal was arrested on August 20, 1995 and was not brought
before a magistrate until August 23, 1995.
They also claim that he was charged on an indictment alleging that
he murdered Philbert Charles during the period August 19 to August 20, 1995,
that his trial took place nearly 4 years later, between July 2 and 5, 1999,
and that this period was unreasonably protracted.
The State is responsible for violations of Articles XVIII and XXVI of the
American Declaration, because the prosecution failed to give full disclosure
of the convictions of the prosecution witnesses to the defense and therefore
deprived Mr. Roodal of adequate time and means to prepare his defense and
a fair trial. The Petitioners
claim in particular that, in the context of Mr. Roodals petition before
the Judicial Committee of the Privy Council, they obtained a list of convictions
of prosecution witnesses from the States solicitor on June 2, 2000.
This list indicated that the defense knowledge of the previous convictions
of Selwyn Simmonds and Andrew Kenhai was incomplete and that both witnesses
lied about the extent of their previous convictions.
The Petitioners state, inter
alia, that a conviction of a prosecution witness may be relevant to both
credit and propensity and that in the present case the credibility of the
prosecution witnesses was disputed and the convictions were therefore relevant
to this issue.
The State is responsible for violations of Article XXVI of the Declaration
in relation to Mr. Roodals treatment and conditions in detention prior
to and following his conviction. In
their submissions, the Petitioners provide information as to the general conditions
of detention facilities in Trinidad and Tobago, as well as the particular
conditions of detention experienced by Mr. Roodal, and claim that these conditions
fail to satisfy minimum international standards for the humane treatment of
prisoners. The Petitioners also
allege that following his arrest Mr. Roodal was the victim of violence by
the police and was deprived of proper medical treatment for his resulting
The State is responsible for violations of Articles XVII and XXVI of the Declaration
as a consequence of its failure to provide Mr. Roodal with effective access
to Constitutional Motions before the courts in Trinidad and Tobago for the
protection of his domestic and international human rights.
The Petitioners argue that Article 14 of the Trinidad and Tobago Constitution
provides individuals with the legal right to bring a Constitutional Motion
in the High Court.
They submit that this right is not effective, however, because the proceedings
are extremely expensive and beyond the victims means, and because no
legal aid is available for these motions.
Consequently, the Petitioners claim that the cost involved in instituting
proceedings before the High Court is beyond the means of the vast majority
of those charged in capital offenses and there is no other available legal
proceeding by which Mr. Roodal can enforce his rights.
Position of the State
As indicated above, the Commission transmitted the pertinent parts
of the Petitioners petition to the State on November 13, 2000 with a
request that the State provide information relevant to the Petitioners
complaints within 90 days. Despite
this request, as of the date of this report the Commission had not received
any information or observations from the State concerning Mr. Roodals
Competence of the Commission
22. 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 the denunciation 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.
23. 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.
24. 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.
the present case,
certain of the events complained
of by Mr. Roodal may, on the information available, have occurred wholly prior
to May 26, 1999, while others may have occurred prior to May 26, 1999 but
continued or had their effects manifested after that date. Still other acts
may have been taken wholly after May 26, 1999.
These circumstances raise the possible application of either or both
the American Convention and the American Declaration to the claims raised
by Mr. Roodal in his petition. The
Commission notes in this regard that, while the Petitioners have not specifically
alleged violations of the American Convention in their petition, the Commission
has the authority and the duty to apply the juridical provisions relevant
to a proceeding even where the parties do not expressly invoke them, by reason
of the general principle of law iura
26. In light of the nature of the Petitioners allegations, the Commission considers that it is only through the analysis of the merits of the Petitioners claims that it may properly determine the nature and extent of any acts for which the State may be responsible and accordingly ascertain the applicability of the American Convention and/or the American Declaration to those acts. The Commission therefore finds that it is competent to consider Mr. Roodals complaints under both instruments, and will join to the merits of the case determination of the specific applicability of either or both the American Convention or the American Declaration to each of the claims raised in Mr. Roodals petition.
Article 46(1)(c) of the American Convention and Article 33(1) of the
Commissions Rules of Procedure provide that the Commission shall not
consider a petition if its subject matter is pending settlement pursuant to
another procedure before an international governmental organization of which
the State concerned is a member, or if it essentially duplicates a petition
pending or already examined and settled by the Commission or by another international
governmental organization of which the State concerned is a member.
28. The Petitioners in Mr. Roodals case have indicated that his complaints have not been submitted for examination by any other procedure of international investigation or settlement. The State has not contested the issue of duplication. The Commission therefore finds no bar to consideration of Mr. Roodals complaints under Article 46(1)(c) of the American Convention or Article 33(1) of the Commissions 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
of the domestic legal system must have been pursued and exhausted in accordance
with the generally accepted principles of international law.
The jurisprudence of the inter-American system makes clear, however,
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.
30. In the present case, the State has failed to provide any observations or information respecting the admissibility of Mr. Roodals claims. Nevertheless, based upon the extensive submissions provided by the Petitioners, it is clear to the Commission that Mr. Roodal has exhausted available and effective remedies before the courts in Trinidad and Tobago. The Petitioners have indicated in particular that Mr. Roodal unsuccessfully appealed his conviction to the Trinidad and Tobago Court of Appeal, and sought Special Leave to Appeal as a Poor Person to the Judicial Committee of the Privy Council, the highest appellate body in Trinidad and Tobago, which denied the petition on November 2, 2000. 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.
31. Based upon these circumstances, the Commission finds that Mr. Roodal exhausted available and effective remedies when the Judicial Committee of the Privy Council dismissed his petition for Special Leave to Appeal on November 2, 2000. Accordingly, the Commission finds that the Petitioners claims are not barred under Article 46(1)(a) of the Convention or Article 31(1) of its Rules of Procedure.
Timeliness of the Petition
32. 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. Mr. Roodals petition was lodged with the Commission on November 8, 2000 and therefore within six months from the date of the decision that exhausted domestic remedies, namely the November 2, 2000 decision of the Judicial Committee of the Privy Council denying Mr. Roodal Special Leave to Appeal. The State has not disputed these facts or otherwise demonstrated that the Petitioners have failed to comply with the 6-month requirement. 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.
33. Article 47(b)
of the Convention and Article 34(a) of the Commissions Rules of Procedure
require a petition to be declared inadmissible if it does not state facts
that tend to establish a violation of the rights guaranteed by the Convention
or other applicable instruments. Article
47(d) of the Convention and Article 34(b) of the Commissions Rules of
Procedure deem inadmissible any communication where the statements of the
petitioner or the State indicate that the petition is manifestly groundless
or out of order.
34. The Petitioners in the present case have alleged that the State has violated Mr. Roodals rights under Articles I, II, XVIII, XXV and XXVI of the American Declaration. As the Commission has noted, the Petitioners allegations may also disclose violations of comparable provisions of the American Convention on Human Rights to the extent that the conduct of the State is alleged to have occurred in whole or in part prior to May 26, 1999. 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 either or both the American Convention or the American Declaration, and that the statements of the Petitioners are not on the information provided manifestly groundless or out of order. Consequently the claims in the petition are not barred 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
36. On the basis of the findings of fact and law set forth above, in light of the particular temporal context of the events alleged in the petition as described above, and without prejudging the merits of the matter,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
1. To declare admissible the Petitioners claims in respect of Articles 1, 2, 4, 5, 7, 8 and 25 of the American Convention and Articles I, II, XVII, XVIII, XXV and XXVI of the American Declaration.
give notice of this decision to the State and to the Petitioners.
3. To continue with the analysis of the merits of the case.
4. To publish this Report and include it in the Annual Report to the OAS General Assembly.
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.
the Person Act, (3 April 1925), Laws of Trinidad and Tobago, Ch. 11:08.
Section 4 of the Act prescribes the death penalty as the mandatory punishment
for the crime of murder, providing that "[e]very person convicted
of murder shall suffer death."
During 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.
In support of their position that Constitutional Motions need not be pursued
in Mr. Roodals circumstances, the Petitioners cite the decisions
of the U.N. Human Rights Committee in Little v. Jamaica, Communication
Nº 283/1988, U.N. Doc. Nº CCPR/C/43/D/283/1988, Reid v. Jamaica, Communication
Nº 725/1987, U.N. Doc. Nº CCPR/PR/C/39/D/725/1987; Collins v. Jamaica,
Communication Nº 356/1989, U.N. Doc. Nº CCPR/C/47/D/356/1989, Smith v.
Jamaica, Communication Nº 282/1988, U.N. Doc. CCPR/C/47/D/282/1988, Campbell
v. Jamaica, Communication Nº 248/1987, U.N. Doc. Nº CCPR/C/44/D/248/1987,
and Kelly v. Jamaica, Communication Nº 253/1987, U.N. Doc. Nº
According to Article
14 of the Constitution of the Republic of Trinidad and Tobago, if
any person alleges that any provisions of this chapter has been, is being,
or is likely to be contravened in relation to him, then without prejudice
to any other action with respect to the same matter which is lawfully
available that person may apply to the High Court for redress by way of
an originating motion.
Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/I.4
rev.8 (22 May 2001), p. 48.
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.
Article 20 of the
Statute of the IACHR provides that, in respect of those OAS member states
that are not parties to the American Convention on Human Rights, 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.
See I/A Court H.R., Velásquez Rodriguez Case, Judgment of July 29,
1988, Ser. S
No. 4 (1988), para. 163.
 I/A Court H.R., Loayza Tamayo Case, Preliminary Objections, Judgment of January 31, 1996, Series C No. 25, para. 40.