RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW
A. Applicable International Law
The pertinent provisions of the American Declaration of the Rights and Duties of Man insofar as this chapter is concerned are the following:
Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that to his prejudice, violate any fundamental constitutional rights.
No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law.
No person may be deprived of liberty for non-fulfillment of obligations of a purely civil character.
Every individual who has been deprived of his liberty has the right to have the legality of this detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody.
Every accused person is presumed to be innocent until proved guilty.
Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws and not to receive cruel, infamous or unusual punishment.1/
B. Applicable Domestic Law
General Decree A-11, Article 5, the Right to Personal Liberty and Security:
The deprivation of liberty is prohibited except in those cases provided by law and in accordance with the procedures established therein. Any person deprived of liberty has the right to treatment in accordance with humanitarian principles.
C. Due Process and Fair Trial Rights in Practice
1. Detentions, Searches and Seizures
Any discussion of these topics must begin with the state of emergency in force in Suriname since August of 1980.
The state of emergency provides that the military police may arrest civilians without a judicial warrant. Moreover, real and personal property are subject to warrantless searches and seizures.
Furthermore, under the state of emergency, incommunicado detentions have been legalized up to 14 days in cases of crimes punishable by more than four years imprisonment, subject to two 30 day extensions, during which time the accused person may or may not be allowed to see an attorney, family members or a judge. It is not surprising, then, that this “legalized” form of arbitrary detention by the military can lead to the types of problems discussed in Chapter IV on the right to humane treatment.
The practice in regards to such detentions insofar as they deal with matters of “state security”was confirmed by Col. Liew Yen Tair, Commander of the Military Police, who explained to the special commission that military police in Suriname currently have the same authority as the regular police force regarding civilians. 2/ He stated that warrants under the state of emergency are unnecessary. He did indicate, however, that when a civilian is arrested by the military police he, as Commandant, must be so informed within six working hours. As a practical matter, he indicated that prisoners are only held for 10 days and thereafter allowed to see a lawyer. Even this was qualified, when the Colonel indicated that in cases he considered particularly serious, the right to legal counsel could be further postponed.
Col. Liew Yen Tair also stated that a registry of civilian and military prisoners in custody of the military police is kept. It is clear, nevertheless, that such a registry is not open to public inspection, much less reported in the news media.
2. Right to legal Counsel
Since December of 1982 when four prominent attorneys, including the Dean of the Suriname Bar Association, were murdered, not surprisingly private lawyers have been loath to represent persons accused of crimes against state security. This situation appears to be changing slowly. Nevertheless, it is worth noting that the Bar Association at the time of the special commission’s visit to Suriname had still not elected a new permanent Dean, apparently for lack of willing candidates.
The unwillingness of lawyers to represent clients accused of crimes against state security was confirmed by the Acting President of the Supreme Court, Mr. Oosterling, although he indicated that the situation is beginning to improve in this regard.
Another aspect of this issue that deserves mentions that of inadequate and tardy legal representation.
In the cases of Mohamed Rafiek Bharos, Iwan Gobardhan, Omprakash Gobardhan, Karel Linveld and Mohamed Liatief Mangal the special commission learned that after having been held in jail for over seven months, these persons were assigned an attorney shortly their respective trials in July 1984. In the case of Omprakash Gobardhan the defendant was advised by this attorney not to appeal lest his sentence be increased.
In its observations on the preliminary report of the IACHR the Government recognizes the denial of due process in these cases. It stated: “The National Institute for Human Rights has ascertained, however, that in this case the procedure was not completely in accordance with the law.” Despite a statement to the effect that measures are to be taken to remedy the irregularities in these cases, the Government has not indicated what effective steps have been or are to be taken to correct procedural errors.
3. The Courts
In ordinary criminal and civil matters, it appears that the civilian court system is functioning normally. Moreover, the special military tribunals established ostensibly to try former government officials accused of corruption prior to the coup d’etat of February, 1980, have been abolished. Likewise the system of military justice reserved for members of the armed forces accused of common crimes appears to be working in a normal manner.
Problems arise, however, in cases of civilians (and members of the armed forces) accused of crimes against state security. In such cases, the Acting President of the Supreme Court, Mr. Oosterling, told the special commission that frequently judges are not officially informed that persons are being held in detention or, if and when they are informed, substantial periods of time have passed since the dates of arredt.
Oftimes, according to Mr. Oosterling, trial judges and members of the Supreme Court learn extra-officially that a suspect is in detention. Judges are then compelled to use extrajudicial channels to intervene. On occasion Mr. Oosterling has had to phone the Minister of Justice to confirm a rumor of an arbitrary detention. The Minister of Justice in turn has had to investigate and report back to the Court. In the meantime the accused might have been released after a period of detention without ever having been brought before a judge. Such a state of affairs lends itself to other types of abuses, erodes the respect for and effectiveness of the courts and leads to the institutionalization of lawlessness.
Matters reached a head in this regard in 1984 when the members of the Supreme Court met with the Commander-in-Chief and demanded respect for due process of law. According to Mr. Oosterling, the military thereafter published a communique commanding the military police to respect judicial authority. Evidently, there has been some improvement since this meeting. Still, justice during 1983 was often by-passed and sometimes judicial orders were ignored or countermanded by military police officers who disagreed with particular judicial decision.
The erosion of the court’s authority in cases involving state security was confirmed in a frank interview with Acting President Ramdat Misier. The Acting President, whose functions are essentially ceremonial, nevertheless, indicated that on occasion he personally learned of cases of arbitrary detentions and felt compelled to inquire extraofficially to try to achieve justice. While these actions by the President demonstrate his good will, they also illustrate that the judicial system is not functioning properly in these cases.
4. Arbitrary Detentions
Although the number of arbitrary arrests in Suriname since the Commission’s first report appears to have diminished, the phenomenon has clearly not disappeared. Rather a new pattern of arbitrary detentions has emerged whereby individuals suspected of having committed crimes against state security are detained, interrogated, mistreated and sometimes tortured and ultimately released after varying periods of detention without ever having been brought before a judge and without ever having had the opportunity to consult an attorney. Examples of these types of arbitrary detentions that have taken place within the time period covered by this report include the following persons: Lila Doerga, Harden Kasi, Krishna Doerga, R. Oudsten, Andre Mahabirsingh and Girjanand Ganpat.
The last individual mentioned in this list has been arrested twice, once in 1984 and again shortly after the IACHR left Suriname in January of 1985. In the case of the first arrest the Commission opened Case No. 9273 and queried the Government of Suriname regarding the matter. Since the Government never responded to that inquiry the Commission presumes the allegations made in the case to be true. This presumption is based on Article 39 of its Rules of Procedure.
As to Mr. Ganpat’s second arrest, along with Andre Mihabirsingh, the Government acknowledged their detention but insisted that it lasted only one day whereupon both men fled the country.
1 / See also Articles 8-12 of the Universal Declaration and Article 9 of the International Covenant of Civil and Political Rights.
2/ Col. Liew Yen Tair was reported to have left Suriname in
May of this year for Holland.