Amicie curiae presentados por Netherlands Institute of Human Rights.
9 February 1993 25-7.0
The Netherlands Institute of Human Rights (SIM), has the honor to submit an Amicus Curiae brief concerning the case of Asok Gangaram Panday v. Suriname on the issue of the burden of proof.
I express the hope that this brief will assist the Court in formulating its judgment.
Prof. dr. Peter R. Baehr
AMICUS CURIAE BRIEF REGARDING THE CASE OF
ASOK GANGARAM PANDAY V. SURINAME
Submitted to the Inter American Court of Human Rights
by the Netherlands Institute of Human Rights (SIM)
9 February 1993
The question as to which party in the proceedings should bear the burden of proof must be addressed in the light of the circumstances of each case. As a rule, in the initial stage the applicant must sufficiently substantiate his allegations for purposes of admissibility. In the post-admissibility stage, in which the consideration of the merits of the case takes place, the submitted by the various parties has to be weighed by the supervisory body in order to establish the facts of the case on the basis of which it will adopt its decision on the issue of violation of the provisions at stake.
The issue of the burden of proof has been dealt with extensively by the Human Rights Committee in its case-law under the Optional Protocol to the International Covenant on Civil and Political Rights. In its constant jurisprudence under article 4, paragraph 2, of the Optional Protocol the Human Rights Committee has established that the burden of proof cannot rest alone on the author of the communication, especially considering that the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to the relevant information1 This appears to be the situation in the present case. The applicant refers to three different autopsy reports, which are contradictory, while the State party has not admitted there are three different autopsy reports. It is evident that the State party is the only party in the case which has access to these documents. In these circumstances, the applicant cannot be held accountable for lack of information. The relatives of the deceased repeatedly tried to obtain information exclusively in the hands of the authorities, but were insufficiently, and a times even wrongly, informed about the circumstances of the detention and the death of Asok Gangaram Panday. Furthermore, Dr. Vrede, the pathologist, certified in writing and orally, declared during the proceedings, that there was blood in the victim's scrotum. This blood, in his view, resulted from brutal force applied to the victim shortly before his death. In such circumstances, the fact that the events which caused the death are not entirely clear, must be attributed to the State party. It is therefore the responsibility of the State party to bring to light the exact circumstances of the death of Asok Gangaram Panday. This especially holds true in the light of the overall situation prevailing in Suriname at the time of the events, which shows a consistent pattern of serious human rights violations perpetrated by the authorities and which are insufficiently investigated and remedied by the Surinamese authorities.
A case which appears to have many similarities to the Gangaram Panday-case is the case of Hugo Gilmet Dermit v. Uruguay2 , which has been considered by the Human Rights Committee. This case may be summarized as follows: Hugo Dermit died while in custody; his relatives were told that he had committed suicide. The State party did not submit any report on the circumstances in which he died or any information as to what inquiries have been made or the outcome of such inquiries. The Committee therefore gave appropriate weight to information submitted by the author, indicating that ¬a few days before Hugo's death he had been seen by other prisoners and was reported to have been in good spirits, in spite of the interruption of the preparations for his release and departure from Uruguay¬. The Committee then stated: ¬While the Committee cannot arrive at a definite conclusion as to whether Hugo Dermit committed suicide, was driven to suicide or was killed by others while in custody; yet, the inescapable conclusion is that in all the circumstances the Uruguayan authorities either by act or by omission were responsible for not taking adequate measures to protect his life, as required by article 6(1) of the Covenant¬. For your information, a copy of the views as adopted by the HRC is enclosed, paragraphs 8.1-11 are of particular relevance.
1 See, inter alia, communication No. 30/1978, Bleier v. Uruguay, views adopted on 29 March 1982, para. 13.3, UN Doc. A/37/40, Annual Report of the Human Rights Committee to the United Nations General Assembly, Annex X, pp.130-136.
2 Hugo Gilmet Dermit on behalf of his cousins, Guillermo Ignacio Dermit Barbato and Hugo Haroldo Dermit Barbato, v. Uruguay, communication No. 84/1981, views adopted on 21 October 1982; published in UN Doc. A/38/40, Annual Report of the Human Rights Committee to the United Nations General Assembly, Annex IX, pp. 124-133.
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