INTER-AMERICAN COURT OF HUMAN RIGHTS CASE OF CAESAR V. TRINIDAD AND TOBAGO
JUDGMENT OF MARCH 11, 2005
In the Case of Caesar,
the Inter-American Court of Human Rights (hereinafter "the Court", "the Inter- American Court", or "the Tribunal"), composed of the following judges:
Sergio García-Ramírez, President;
Alirio Abreu-Burelli, Vice-President;
Oliver Jackman, Judge;
Antônio A. Cançado-Trindade, Judge;
Cecilia Medina-Quiroga, Judge;
Manuel E. Ventura-Robles, Judge; and
Diego García-Sayán, Judge;
Also present,
Pablo Saavedra-Alessandri, Secretary; and
Emilia Segares-Rodríguez, Deputy Secretary;
Pursuant to Articles 29, 31, 56, and 58 of the Rules of Procedure of the Court (hereinafter "the Rules of Procedure" or "the Rules"),1 delivers the present
Judgment.

I INTRODUCTION OF THE CASE

1. The present Case was submitted to the Court by the Inter-American Commission on Human Rights (hereinafter "the Commission" or "the Inter-American
Commission") against the State of Trinidad and Tobago (hereinafter "the State" or "Trinidad and Tobago") on February 26, 2003, originating from the petition No.
12.147, which was received at the Commission's Secretariat on May 13, 1999.

2. The Commission filed the Application pursuant to Article 61 of the American Convention, for the Court to decide whether the State violated “Mr. [Winston]
Caesar’s right to humane treatment under Articles 5(1) and 5(2) of the Convention, his right to be tried within a reasonable time under Article 8(1) of the Convention, and his right to judicial protection under Article 25 of the Convention, all in conjunction with violations of Article 1(1) of the Convention. In addition, the Commission argue[d] that the State, by failing to provide for the right to be tried within a reasonable time under its domestic law and by authorizing a form of
punishment that is incompatible with the right to humane treatment, is responsible for violating its obligation[…] under Article 2 of the Convention to give domestic legal effect[…] to the rights guaranteed under Articles 5(1), 5(2), 7(5) and 8(1) of the Convention”. The Commission also requested that the Court order the State to adopt various pecuniary and non-pecuniary measures of reparation.

3. According to the Application of the Commission, the current legislation of Trinidad and Tobago allows for the imposition of corporal punishment. Under the
Corporal Punishment Act (Offenders Over Sixteen) of 1953 (hereinafter “Corporal Punishment Act”), a court may order any male offender above the age of sixteen years to be struck, or flogged, with an object called a “cat-o-nine tails”, in addition to any other punishment to which he is liable, when convicted of certain crimes2. That same law provides that a sentence of flogging shall be carried out as soon as may be practicable and in no case after the expiration of six months from the passing of the decision. The alleged victim in this case, Mr. Winston Caesar (hereinafter "Mr. Caesar" or "the alleged victim"), was convicted before the High Court of Trinidad and Tobago of the offense of attempted rape and was sentenced to serve 20 years in a penitentiary with hard labour and to receive 15 strokes of the “cat-o-nine tails”. The Court of Appeal of Trinidad and Tobago confirmed his conviction and sentence and, 23 months after the final confirmation of his sentence, Mr. Caesar´s punishment of flogging was carried out.

4. Moreover, the Commission contends that, given the nature of the violations for which the State should be held responsible, Trinidad and Tobago must provide
Mr. Caesar with an effective remedy, which includes compensation for the moral damage suffered by him. In addition, the Commission seeks an order requiring the State to adopt legislative and other measures as necessary to give effect to the right to a trial within a reasonable time, to abrogate the punishment of flogging as
provided under its Corporal Punishment Act, and to ensure that conditions of detention in the State’s prisons satisfy the minimum standards of humane treatment provided for under the Convention.

II JURISDICTION OF THE COURT

5. Trinidad and Tobago deposited its instrument of ratification of the American Convention on Human Rights (hereinafter "the Convention" or "the American Convention") on May 28, 1991. On that same day, the State recognised the compulsory jurisdiction of the Court.

6. On May 26, 1998, Trinidad and Tobago denounced the Convention and the denunciation became effective one year later, as of May 26, 1999, pursuant to Article 78 of the Convention. According to Article 78 of the Convention, a denunciation will not release the denouncing State from its obligations under the
Convention with respect to acts of that State occurring prior to the effective date of the denunciation that may constitute a violation of the Convention.

7. Moreover, in the Hilaire, Constantine, Benjamin and others Case3, the Court held in its judgments on preliminary objections that:

[…] Trinidad and Tobago cannot prevail in the limitation included in its instrument of acceptance of the optional clause of the mandatory jurisdiction of the Inter-American Court of Human Rights in virtue of what has been established in Article 62 of the American Convention, because this limitation is incompatible with the object and purpose of the Convention.

8. Notwithstanding the fact that the Inter-American Court is fully competent to hear the present Case, the State did not participate in the proceedings before this
Tribunal (infra paras. 24, 30, 34 and 39). Nevertheless, the Court, as is the case with any other international organ with jurisdictional functions, has the inherent
authority to determine the scope of its own competence (compétence de la compétence).4

9. In interpreting the American Convention in accordance with the general rules of treaty interpretation enshrined in Article 31(1) of the Vienna Convention on the
Law of Treaties, bearing in mind the object and purpose of the American Convention, this Tribunal, in the exercise of the authority conferred on it by Article 62(3) of the American Convention, must act in a manner that preserves the integrity of the provisions of Article 62(1) of the Convention. It would be unacceptable to
subordinate these provisions to restrictions that would render inoperative the Court’s jurisdictional role, and consequently, the human rights protection system established in the Convention.5

10. Furthermore, the Court considers relevant to recall a recent case law with respect to the its ratione temporis competence6:


[…] The Court cannot exercise its contentious jurisdiction to apply the Convention and declare that its provisions have been violated when the alleged facts or the conduct of the defendant State which might involve international responsibility precede recognition of the Court’s jurisdiction.

[…] However, in case of a continuing or permanent violation, whose commencement occurred before the defendant State had recognized the Court’s contentious jurisdiction and which persists even after this recognition, the Court is competent to consider the actions and omissions that occurred after the recognition of its jurisdiction and the effects of the violations.

11. With the exception of certain matters concerning the criminal proceedings, most of the facts alleged in the Application in the present case occurred before the
State´s denunciation of the Convention came into effect. Taking into account the considerations set out in the preceding paragraphs, the Court reaffirms its
competence, according to the terms of Articles 62(3) and 78(2) of the Convention, to hear the present Case and render judgment.

III PROCEEDINGS BEFORE THE COMMISSION

12. On May 13, 1999, the British law firm Lovells filed a petition before the Inter- American Commission.

13. On October 10, 2001, during its 113th Regular Session, the Commission adopted Report No. 88/01, in which it found the claims in Mr. Caesar's petition to be admissible, and decided to continue with consideration of the merits of the case.

14. On October 10, 2002, during its 116th Regular Session, the Commission approved Report Nº 65/02 on the merits of the case, in which it concluded that:
The State is responsible for violating Mr. Caesar’s right to humane treatment under Articles 5(1) and 5(2) of the Convention, his right to be tried within a reasonable time under Article 8(1) of the Convention, and his right to judicial protection under Article 25 of the Convention, all in conjunction with violations of Article 1(1) of the Convention. In addition, the Commission finds that the State, by failing to provide for the right to be tried within a reasonable time under its domestic law and by authorizing a form of punishment that is incompatible with the right to humane treatment, is responsible for violating its obligations under Article 2 of the Convention to give domestic legal effects to the rights guaranteed under Articles 5(1), 5(2), 7(5) and 8(1) of the Convention. Based upon the information and evidence presented, the Commission did not find a violation of Mr. Caesar’s right to legal assistance under Article 8(2) of the Convention.

The Commission recommended that the State:

1. Grant Winston Caesar with an effective remedy, which includes compensation;

2. Adopt such legislative or other measures as may be necessary to give effect to the right to a trial within a reasonable time;

3. Adopt such legislative or other measures as may be necessary to abrogate the punishment of flogging as provided for under its Corporal Punishment (Offenders
Over Sixteen) Act of 1953

4. Adopt such legislative or other measures as may be necessary to ensure that Mr. Caesar’s conditions of detention comply with the standards of humane treatment mandated by article 5 of the Convention.

15. On November 27, 2002, the Commission transmitted Report Nº 65/02 to the State, with the request that the State report on the measures adopted to comply
with the recommendations contained therein, within two months from the date of transmission. By a communication of the same date, the Commission informed the
Petitioners that it had approved Report Nº 65/02, and requested that they provide, within one month, the information referred to in Article 43(3) of its Rules of
Procedure, regarding their views with respect to a possible referral of the case to the Inter-American Court.

16. On December 31, 2002, the Petitioners submitted their response to the Commission’s communication of November 27, 2002, indicating that “referral to the
Court is appropriate in this case, as the Court represents the only opportunity for Mr. Caesar to obtain a real and effective remedy for the violations of his human rights”.

17. On February 26, 2003, the Commission decided to submit the present case to the Court, as “the State did not provide [it] with a response to its merits Report”.

IV PROCEEDINGS BEFORE THE COURT

18. On February 26, 2003, the Commission filed before the Court the Application in the present case (supra para. 1).

19. The Commission appointed Robert K. Goldman, Juan E. Méndez, Clare K. Roberts and Santiago A. Canton as delegates, and Ariel Dulitzky and Brian D.
Tittemore as legal advisors.

20. On March 20, 2003, the Secretariat of the Court (hereinafter “the Secretariat”), following a preliminary examination of the Application by the President
of the Court (hereinafter “the President”), notified it with its annexes to the State and informed it regarding the time limits to answer the Application and to appoint its representation for the proceeding. On the instructions of the President, the Secretariat also advised the State of its right to designate a Judge ad hoc to
participate in the consideration of the case.

21. On March 24, 2003, in accordance with articles 35(1)(e) and (d) of the Rules of Procedure, the Secretariat notified the Application to the representatives of the alleged victim (hereinafter “the representatives”). Mrs. Jon Holland, Andrea Monks, Yasmin Walijje, Yvonne Gray and Peter Carter have represented Mr. Caesar in the proceedings before the Court.

22. The State failed to designate either agents or a Judge ad hoc before the time limit expired on April 20, 2003.

23. The representatives failed to submit their written brief containing pleadings, motions and evidence, before the time limit expired on April 24, 2003, as provided
under the terms of Article 35.4 of the Rules of Procedure in force at the time.

24. The State failed to submit its answer to the Application before the time limit expired on May 20, 2003, as provided under the terms of Article 37.1 of the Rules of Procedures in force at the time.

25. On April 12, 2004, the non-governmental organisations Harvard Law Student Advocates for Human Rights and Global Justice Centre submitted an amici curiae brief in the present case.

26. On September 6, 2004, the non-governmental organisation Interights submitted an amicus curiae brief in the present case.

27. On October 20, 2004, the President issued an Order, pursuant to article 47(3) of the Rules of Procedure, requiring Mr. Caesar, a witness called by the Inter-
American Commission, and Desmond Allum and Andrew Coyle, expert witnesses also called by the Inter-American Commission, to file their respective affidavits on the time limit of seven days, for transmission to the State and the representatives for their observations. The President also summoned the parties to present their final oral arguments on merits, possible reparations and costs at a public hearing to be held on November 15, 2004, with final written briefs to be filed no later than December 16, 2004, and ordered the appearance of Dr. Robert Ferris, an expert witness called by the Inter-American Commission.

28. On November 3, 2004, the Commission submitted the affidavits of Winston Caesar, Desmond Allum, Andrew Coyle and Robert Ferris. The State and the
representatives did not submit any observations.

29. On November 15, 2004, at the public hearing on the merits and possible reparations and costs, the Court heard the expert testimony of Dr. Ferris, called by
the Inter-American Commission, as well as the final oral arguments on the merits, possible reparations and costs of the Commission and the representatives.

Appearing before the Court:
for the Inter-American Commission:
Clare K. Roberts, delegate;
Brian Tittemore, advisor;
for the representatives:
Peter Carter, representative;
Andrea Monks, representative; and
expert witness proposed by the Inter-American Commission:
Robert Ferris.

30. The State did not appear in the public hearing. Accordingly, the hearing was held pursuant to Article 27 of the Rules of Procedure, which was read by the
Secretary at the beginning of the hearing and states the following:
Article 27. Default Procedure

1. When a party fails to appear in or continue with a case, the Court shall, on its own motion, take such measures as may be necessary to complete the consideration of the case.

2. When a party enters a case at a later stage of the proceedings, it shall take up the proceedings at that stage.

31. During the public hearing, the representatives submitted a document titled “Skeleton Argument on behalf of [Mr.] Winston Caesar” and the Commission
submitted a document titled “Oral Submissions […] on merits and possible reparations and costs”, as well as Mr. Caesar’s medical records from the Port of
Spain Hospital, as an exhibit to the October 5, 2004 affidavit of Dr. Robert Ferris; and four exhibits to the July 13, 2004 affidavit of Mr. Andrew Coyle.

32. On December 6, 2004, following the instructions of the President and in accordance with Article 45(2) of the Rules of Procedure, the Secretariat required
Trinidad and Tobago to submit, no later than January 15, 2005, all of Mr. Winston Caesar’s medical records from the prisons in which he was incarcerated and where he also received medical treatment, including those relating to his medical condition and treatment prior to and following the execution of his sentence of corporal punishment. The abovementioned documents were not submitted to the Court.

33. On December 13 and 16, 2004, the representatives and the Commission, respectively, presented their final written arguments on merits and possible
reparations and costs. The State did not present any final written arguments.

V PREVIOUS CONSIDERATIONS

34. The State did not appear in the proceedings before the Commission nor before the Court. Nevertheless, the Court has, of its own motion, taken the
necessary measures to complete consideration of the case and, having evaluated the arguments and the evidence tendered during the proceedings by the Inter-American Commission and by the representatives, now delivers its judgment.

35. In its final written arguments the Commission invoked Article 38(2) of the Court’s Rules of Procedure, and the Court deems it pertinent to examine the scope
and effect of its relevance to the circumstances of the present case.

36. Article 38(2) of the Rules of Procedure provides: In its answer, the respondent must state whether it accepts the facts and claims or whether it contradicts them, and the Court may consider accepted those facts that have not been expressly denied and the claims that have not been expressly contested.

37. The Court has held in previous cases that when a State does not specifically contest the Application, the facts on which it remains silent are presumed to be true, provided that the evidence before the Court is found to be consistent with those facts.7 In recent cases in which the State has presented no defense and has failed to appear at the hearings, the Court has ruled:

[…] that procedural inactivity does not give rise to a specific sanction against the parties, nor does it affect the development of the proceeding; but, it may eventually prejudice them, if they take the decision not to exercise fully their right to defense or to execute the appropriate procedural actions that are in their interests, in accordance with the audi alteram partem principle.

[…] International jurisprudence has recognized that the absence of one of the parties at any stage of the case, does not affect the validity of the judgment;8 therefore, pursuant to Article 68(1) of the Convention, Peru’s obligation to comply with this Court’s judgment in this case is in force.9

38. Pursuant to Article 38(2) of the Rules of Procedure, the Court is authorized to consider as established those facts that have not been expressly denied and those claims that have not been expressly contested; nevertheless, as master of its own jurisdiction (supra para. 8 and 11) and in exercise of the authority granted by Article 55 of the Rules of Procedure, the Court is at liberty to assess the facts, alone or in conjunction with other elements from the evidence available. It remains the case that the State’s inactivity before an international human rights tribunal not only may eventually work to its detriment but is contrary to the object, purpose and spirit of the American Convention and of the collective enforcement mechanism enshrined therein.

39. It should be emphasized that in this case the State failed to discharge its procedural responsibility to submit evidence in the course of the procedural stages
set out in Article 44 of the Rules of Procedure (supra para. 24). In consequence, the Court deems it appropriate to establish the proven facts of the instant case, taking into account, in addition to the aforementioned silence of the State, other elements that may assist it in establishing the truth of the facts, exercising its responsibility to protect human rights and applying, to this end, the pertinent provisions of the American Convention and of general international law.

VI EVIDENCE

40. Before turning to the analysis of the evidence received, in this chapter the Court, pursuant to articles 44 and 45 of the Rules of Procedure, will make reference
to certain general considerations applicable to the specific case, the majority of which have been previously expounded in the jurisprudence of this Tribunal.

41. The principle of the presence of parties to a dispute applies to evidentiary matters, and it involves respecting the parties’ right to defense. This principle is
contained in article 44 of the Rules of Procedure, regarding the opportunity in which the evidence must be submitted, in order to seek equality among the parties10.

42. It is well-settled law and practice that international procedures relating to the admission and evaluation of evidence are not subject to the same formalities as
domestic judicial procedures. This principle is especially applicable to international human rights tribunals, which enjoy greater flexibility in assessing the evidence
presented before them, in accordance with the rules of logic and on the basis of experience. The admission of evidence must be carried out with careful attention to the circumstances of the particular case, while bearing in mind the limits imposed by due respect for judicial certainty and procedural equality as between the parties.11 43. Therefore, the Court will proceed to examine and evaluate all the elements that comprise the corpus of evidence in the case.

a) DOCUMENTARY EVIDENCE

44. Among the documentary evidence presented by the parties, the Commission submitted the alleged victim's declaration and the reports and exhibits of the expert witnesses (affidavits) pursuant to the President's Order of October 20, 2004 (supra para. 27). The Court deems pertinent to summarize these affidavits.
a) Testimony of Mr. Winston Caesar

In his affidavit, Mr. Winston Caesar, the alleged victim of the violations pleaded in the instant case, deposed as follows: He described the conditions of his incarceration at the Golden Grove Prision, and at the Carrera Prison where he shared a cell with four men, and slept on the floor on a thin mat. The cell was hot and had no ventilation, and did not have toilet facilities. At the Maximum Security Prison the water is turned on for only half an hour in the mornings and a afternoons. He is allowed to go out in the yard for about an hour every morning and afternoon during the week; on the weekends, he is allowed to go into the yard only in the morning. Since entering prison Mr. Caesar has lost most of his teeth and has not received any dental treatment. He has also suffered from hemorrhoids; he has had surgery but still has symptoms of the malady and thus requires another operation. In 1998 he discovered that he has a cyst in his groin area, which
will also require surgery. He knew that floggings take place at the Carrera Prison two or three times a year. On three occassions, at least, he was taken to another cell block to witness the infliction of similar punishment on four other men (infra para. 77).

Mr. Caesar described the way the flogging was carried out on February 5, 1998 (infra para. 76).

b) Expert Report of Mr. Desmond Allum, S.C. (Mr. Allum is a Senior Counsel of the Trinidad and Tobago Bar, currently President of the Criminal Bar Association, and a former President of the Bar Association of Trinidad and Tobago). The expert witness gave details of the history of the Corporal Punishment Act pointing out, inter alia, that, as amended in 1994, that Act provides that the sentence of flogging shall be carried out within six months of conviction,
except when an appeal has been filed. Moreover, he referred to the application of the “savings clause” in the Constitution of Trinidad and Tobago (infra para. 115). He stated that the conditions in Trinidad and Tobago's prisons are unsatisfactory, characterised by overcrowding, lack of proper light and ventilation, inadequate hygiene, and the absence of satisfactory medical and dental services.

c) Expert Report of Dr. Andrew Coyle

(Professor Coyle is professor of Prison Studies at the School of Law, King´s College, University of London)

Dr. Coyle referred to international law and standards with respect to the application of corporal punishment, and to the conditions of detention in the State’s prisons.

d) Testimony of Dr. Robert Ferris
(Consultant Forensic Psychiatrist and Clinical Director of Forensic and Secure Services for the Oxfordshire Mental Healthcare Trust)
Dr. Ferris interviewed Mr. Caesar in the Maximum Security Prison of Trinidad and Tobago. The expert witness expressed that Mr. Caesar does not suffer from any specific mental illness but, during his current period of imprisonment, he has suffered from depression and anxiety. Mr. Caesar experienced the suffering to be expected in a person anticipating a painful and brutal form of physical punishment. Furthermore, the intense mental suffering resulting from the corporal punishment would have been exacerbated by the long delay in its being carried out, and by the repeated “false starts” of the execution of the punishment. Regarding the punishment itself, Mr. Caesar suffered such intense fear, pain and humiliation that he fainted. The corporal punishment caused the alleged victim bruising and possible lacerations to his back but he does not show any scarring. After being flogged, Mr. Caesar was admitted to the infirmary, where he was treated with analgesic medication. Mr. Caesar suffered from psychological consequences after his corporal punishment, such as post-traumatic stress symptoms, including depressed mood, disturbing recollections, and a sensation of something hitting his back, which causes his shoulder to twitch involuntarily. There is a discrepancy on the timing of the hemorrhoid operation in Mr. Caesar's account (December 1997) and that of the medical records (January 1997). Moreover, Mr. Caesar was admitted to a hospital on December 27, 1997 for a day, and received a diagnosis of ureteric colic.

b) EXPERT EVIDENCE

45. During the public hearing (supra para. 29), the Court heard oral expert testimony from Dr. Ferris proposed by the Inter-American Commission. His
testimony and affidavit are summarized in the previous section of this chapter (supra para. 44 d).
*
c) ASSESSMENT OF THE EVIDENCE

46. In this case, as in others,12 the Court admits the probative value of those documents presented in timely fashion by the parties, the authenticity of which was
not challenged or questioned.

47. With respect to the declaration rendered by the alleged victim (supra para. 44(a)), the Court admits it insofar as it is in accordance with the Order of October
20, 2004 (supra para. 27). In this regard, because Mr. Caesar has a direct interest in the case, that declaration cannot be evaluated in isolation, but rather within the context of the entire corpus of evidence submitted in the proceeding. Thus, as it has held in similar cases, the Court considers that declaration to be of assistance inasmuch as it can provide information of relevance both as to the merits and as to reparations.13

48. Regarding the expert testimony given during the public hearing by Robert Ferris, as well as the affidavits and accompanying exhibits presented by experts
Desmond Allum, Andrew Coyle and Robert Ferris (supra para. 28), the Court rules that they are admissible, insofar as they are in conformity with the Order of October 20, 2004.

VII PROVEN FACTS

49. The Court considers that the following facts have been proven: Regarding Winston Caesar's criminal proceedings

49(1). On November 11, 1983, Mr. Winston Caesar was initially arrested as the suspect in connection with a rape that was alleged to have taken place in Trinidad on November 8, 1983. On November 16, 1983, he was released on bail. Between 1985 and 1986 committal proceedings took place in the Port of Spain Magistrate's 4th Court, which ordered him to stand trial on February 21, 1986.

49(2). On September 10, 1991, he was arrested and taken into custody for failing to appear in court. During his trial he was held at Port of Spain prison.

49(3). The trial was held in January 1992, before Mr. Justice Dayalsingh, in the High Court of Trinidad and Tobago. On January 10, 1992, Mr. Caesar was convicted of attempted rape under Trinidad and Tobago’s Offences Against the Person Act. He was sentenced to serve 20 years in a penitentiary with hard labor and to receive 15 strokes of the cat-o-nine tails. That same day Mr. Caesar signed a Notice of Appeal and remained in detention.

49(4). On November 26, 1993 Mr. Caesar's attorney filed an application for leave to appeal at the Court of Appeal of Trinidad and Tobago, challenging the legal basis for the ruling. On February 28, 1996, the Court of Appeal of Trinidad and Tobago dismissed Mr. Caesar’s application for leave to appeal apparently without giving reasons, and confirmed the conviction and sentence.

49(5). A counsel in Britain was asked by Mr. Caesar’s lawyers to consider whether there were reasonable grounds of appeal to the Privy Council in this case. On November 2, 1998, in his “note for instructing solicitors”, counsel indicated that an application for Special Leave to Appeal to the Privy Council was unlikely to succeed. In considering whether the delay of over 8 years between Mr. Caesar’s arrest and trial was so great as to amount to a denial of justice, and thus an infringement of his constitutional rights, counsel was of the opinion that although the delay was “very great” and might be imputed to the State, he nevertheless judged as minimal the degree of risk that the miscarriage of justice had been caused by the delay. Finally, the counsel considered that, although such delay was a point on which Mr. Caesar might have applied to the High Court of Trinidad and Tobago, he discounted the chances of success at the Privy Council.

Regarding the relevant law in Trinidad and Tobago

49(6). There are two principal laws that authorize the use of corporal punishment in Trinidad and Tobago. One of them is the Corporal Punishment Act (Offenders Over Eighteen). The terms of this legislation provide for the application of corporal punishment for certain crimes by, inter alia, the following methods: whipping with a rod of tamarind or similar switch and flogging with strokes of an object called a “cat-o-nine tails”.

49(7). Articles 2, 6 and 7 of the Corporal Punishment Act stipulate that:

2. Any male offender, above the age of sixteen years, on being convicted before the High Court of any of the offences mentioned in the Schedule, may be ordered by the Court to be flogged in addition to any other punishment to which he is liable.

6. A sentence of flogging shall be carried out as soon as may be practicable and shall in no case be carried out after the expiration of six months from the passing of the sentence.

7. The instrument to be used for carrying out a sentence of flogging shall be the ordinary cat-o-nine tails and for carrying out a sentence of whipping a rod of tamarind, birch or other switches or in either case such other instrument as the President may from time to time approve.

49(8). The “cat-o-nine tails” consists of a plaited rope instrument of nine knotted thongs of cotton cord, each of which is approximately 30 inches long and less than one quarter of an inch in diameter. The thongs are attached to a handle. The nine cotton thongs are lashed across the back of the subject, between the shoulders and the lower area of the spine.

49(9). The Corporal Punishment (Offenders Over Sixteen) Act of 1953 was amended in 1994 and in 2000. The 1994 amendment provided for the suspension of the original six-month time limit for the carrying out of a sentence of corporal punishment while an appeal is pending. The 2000 amendment provides that corporal punishment may be administered only to persons over the age of 18.

49(10). Sections 4 a) and b), 5 b), and 6(1) and (3) of the Constitution of Trinidad and Tobago provide as follows:

4. It is hereby recognized and declared that in Trinidad and Tobago there have existed and shall continue to exist […]:
a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right no to be deprived thereof except by due process of law;
b) the right of the individual to equality before the law and the protection of the law;

5. (2) […The] Parliament may not: […]
b) impose or authorize the imposition of cruel and unusual treatment or punishment […]
c) deprive a person who has been arrested or detainediii. of the right to be brought promptly before an appropriate judicial authority; […]
e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations; […]

6. (1) Nothing in sections 4 and 5 shall invalidate a) an existing law […]
(3) In this section- […]
“existing law” means a law that had effect as part of the law of Trinidad and Tobago immediately before the commencement of this Constitution, and includes any enactment referred to in Subsection (1) […]

49(11). Section 6 of the Constitution of the Republic of Trinidad and Tobago precludes individuals from challenging, under Sections 4 and 5 of the Constitution, all laws or acts carried out pursuant to any law in force in Trinidad and Tobago before 1976, the year the Constitution entered into force.

49(12). The Constitution of Trinidad and Tobago does not provide, among its prescribed fundamental rights and freedoms, the right to a trial within a reasonable time.

Regarding Mr. Caesar's detention and health conditions

49(13). Mr. Caesar has been incarcerated since September 10, 1991 (supra para. 49(2)) and has served 13 years of his 20-year sentence.

49(14). The prison system in Trinidad and Tobago consists of the following five prisons: Port of Spain Prison, Golden Grove Prison, Maximum Security Prison, Carrera Convict Prison and Tobago Prison.

49(15). During the course of his criminal proceedings, Mr. Caesar has been incarcerated at four of the five prisons in Trinidad and Tobago. After his arrest in 1991, he was held for a short time at the Port of Spain Prison, and he was then transferred to the Golden Grove Prison in Arouca, where he stayed for at least two months. Then he was returned to the Port of Spain Prison for two months. Subsequently, Mr. Caesar was sent back again to the Golden Grove Prison, where he remained until his trial in February 1996 when he was transferred to the Port of Spain Prison. Some time after, he was transferred to the Golden Grove Prison once again. After his case was dismissed by the Court of Appeal, he was returned to the Port of Spain Prison, where he was held for at least two months. He was then sent to the Carrera Convict Prison, where he was detained until November 1999. Finally, he was transferred to the Maximum Security Prison, where he remains to date.

49(16). In Golden Grove Prison and in Carrera Convict Prison the alleged victim shared a cell with 4 or 5 other men and slept on the floor with a thin mat or on an old piece of carpet. There were no toilet facilities and a “slop pail” was used by everyone in the cell. There was always a stench of human waste in the cell, which had little ventilation and was hot.

49(17). At the Maximum Security Prison Mr. Caesar is allowed outside his prison cell for one hour during the mornings and one hour during the evenings.

49(18). Since his incarceration, he has suffered serious health problems that have not been properly treated by the State authorities. His health has deteriorated over time. He has not received adequate dental treatment while in prison (he has lost most of his teeth, with only six remaining in his lower jaw). Subsequent to incarceration, Mr. Caesar developed chronic hemorrhoids from which he continues to suffer, and he has had a cyst in his testicles since 1998.

49(19). Mr. Caesar did not receive timely treatment with respect to his hemorrhoid condition. In 1992 a doctor recommended that he undergo surgery for his hemorrhoids. The procedure was postponed at least twice and, during the delay, his condition worsened. The surgery finally took place at the end of January, 1997. At the present time he continues to suffer and bleed heavily because of this condition.

49(20). On December 27, 1997 Mr. Caesar was admitted to a hospital, where he stayed for one day, and received a diagnosis of left-sided ureteric colic, which is a condition causing acute and severe pain in the lower abdomen.

49(21). In 1998 a doctor advised Mr. Caesar that the cyst on his testicles required surgery. However, he still has not received that operation.

49(22). Mr. Caesar’s detention conditions are indicative of the general conditions in Trinidad and Tobago’s prison system.

Regarding Mr. Caesar's Corporal Punishment

49(23). Between April and June of 1996, Mr. Caesar was taken to the Carrera Convict Prison.

49(24). Prisoners who are sentenced to corporal punishment are usually held beforehand in the Carrera Convict Prison, with the purpose of executing the sentence. Corporal punishment is carried out in this prison only at specified times during the year.

49(25). Mr. Caesar was aware of the times designated for corporal punishment, and his emotional state deteriorated as these times approached. Between November of 1996 and the day the flogging was inflicted, Mr. Caesar was taken on three or four separate occasions to another cell with other prisoners where they were kept overnight. Each morning the other prisoners were taken out, one by one, for their corporal punishment to be carried out. On each occasion, Mr. Caesar observed that the prisoners returned severely injured, but he was not flogged and rather was returned to his cell without any explanation.

49(26). On February 5, 1998, Mr. Caesar was subjected to 15 strokes of the “cat-o-nine tails”, in accordance with his sentence.

49(27). For the administration of the flogging, Mr. Caesar was required to “lie spreadeagled and naked” and was strapped to a metal contraption, known in prison as the “Merry Sandy”. His hands and feet were tied tightly to the metal structure and his head was covered with a sheet. Once strapped to the iron frame with his back exposed and his clothing removed, Mr. Caesar was then flogged with the “cat-o-nine tails”.

49(28). The punishment was carried out despite his physical condition (supra para. 49(18)). There were at least six persons present in the room where the punishment was carried out, including the Supervisor of Prisons and the prison medic. Before the flogging, the doctor examined Mr. Caesar’s blood pressure and other vital signs, and then gave his consent to continue. During the lashing, Mr. Caesar screamed out in pain, and eventually fainted. When he regained consciousness, the Superintendent ordered that he be taken to the infirmary.

49(29). There are no medical records regarding the administration of Mr. Caesar's corporal punishment.

Physical and psychological consequences of Mr. Caesar's corporal punishment

49(30). Mr. Caesar remained in the infirmary for two months after the corporal punishment, and did not receive any medical treatment for the flogging except for orally-administered painkillers. Mr. Caesar continues to suffer pain in his shoulders.

49(31). As a result of the punishment, Mr. Caesar has suffered depression, and acute anxiety of sufficient severity to warrant a diagnosis of, at a minimum, an adjustment disorder.

49(32). Mr. Caesar may have suffered from post-traumatic stress disorder in the the first or second year after the corporal punishment was inflicted. Although he continues to have some post-traumatic stress disorder symptoms, such as depressed mood, intrusive recollections, and a sensation of something hitting his back, which causes his shoulder to twitch involuntarily, they do not currently meet the diagnosis of that disorder.

Regarding Mr. Caesar's damages
49(33). The facts of the present case have resulted in the alteration of Mr. Caesar's physical and psychological condition, causing him damages.

VIII ARTICLES 5(1) AND 5(2) OF THE AMERICAN CONVENTION IN CONJUNCTION WITH ARTICLES 1.1 AND 2 OF THE CONVENTION
(RIGHT TO PERSONAL INTEGRITY)
Arguments of the Commission

50. With regard to Article 5 of the American Convention, the Inter-American Commission argued that:
a) the concept of “inhuman treatment” includes “degrading treatment”;
b) torture is an aggravated form of inhuman treatment perpetrated with the purpose of obtaining information, confessions or inflicting a punishment. The essential criterion by which to distinguish torture from other cruel, inhuman or degrading treatments or punishment consists in the intensity of the suffering inflicted;
c) many instruments of human rights law or international humanitarian law expressly prohibit corporal punishment. Furthermore, many international and national tribunals and authorities have considered that corporal punishment is incompatible with national and international guarantees against torture and other inhuman treatment, such as the United Nations Special Rapporteur on Torture, the Human Rights Committee, the European Court on Human Rights, the European Commission on Torture and Inhuman or Degrading Treatments or Punishment Prevention;
d) the use of the “cat-o-nine tails” seeks and achieves the effect of causing serious physical, mental and psychological suffering, as well as physical damage to the alleged victim’s body;
e) the waiting period for the implementation of the corporal punishment can cause serious anguish, stress and mental suffering, including the loss of intestine and bladder control;

Regarding Mr. Caesar’s corporal punishment
f) by imposing upon Mr. Caesar a sentence of 15 strokes with the “cat-o-nine tails”, the State violated his right to physical, mental and moral integrity under Article 5.1 of the Convention, and his right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment under article 5.2 of the Convention;
g) the lapse of time in which Mr. Caesar was waiting for the punishment caused him great anguish, stress and fear, as he was exposed to the suffering of other inmates subjected to corporal punishment on four separate occasions, without knowing whether the punishment might also be inflicted upon him;
h) the State flagrantly violated its own law in executing Mr. Caesar’s punishment
23 months –and not 6 months as provided by law– after sentencing;
i) the suffering caused to Mr. Caesar by the punishment imposed was aggravated by his age (49 years); by his vulnerable physical condition; by the treatment he was subjected to before and after the flogging; and by the manner in which the corporal punishment was carried out;
j) as recognized under international standards governing detainees and prisoners (such as Principles 2 and 4(b) of the United Nations’ Principles of Medical Ethics), the availability of competent medical officers to supervise and treat prisoners is fundamental to the humane treatment of detainees. The doctor present at the punishment authorized its infliction, notwithstanding his knowledge of Mr. Caesar’s precarious medical condition, due to the surgery carried out some weeks before. These circumstances raise serious questions regarding whether health personnel in the prison have complied with international law;
k) the fact that the treatment given to Mr. Caesar was imposed as a form of criminal sanction does not affect the State’s obligation to comply with the requirements of articles 5.1 and 5.2 of the Convention, as the prohibition of torture and other cruel, inhuman or degrading punishment or treatment is absolute;
l) in mantaining a law that permits the infliction of corporal punishment by flogging with the “cat-o–nine tails”, the State failed to meet the general obligation to give internal legal effect to the rights under Article 5 of the Convention, as imposed by Article 2;
m) the punishment of flogging with the “cat-o–nine tails” is, by its very nature, intention and effects, inconsistent with the standards of humane treatment provided by Article 5.1 and 5.2 of the Convention and, for that reason, the State has the obligation under Article 2 of the Convention to abrogate such a law;Regarding Mr. Caesar’s detention conditions
n) the State is responsible for other violations of the right to humane treatment under Articles 5.1 and 5.2 of the Convention due to the conditions in which Mr. Caesar was detained;
o) in the present case the State failed to meet domestic and international standards on conditions of detention: between January 1991 and November 1999, Mr. Caesar was subjected to the following conditions: an overcrowded cell, poor sanitation, little light and ventilation, as well as inadequate medical treatment, all of which violated his right have his physical, mental and moral integrity respected and constitutes a cruel, inhuman or degrading punishment or treatment;
p) Mr. Caesar has suffered from serious health problems, which have included contracting tuberculosis and chronic hemorrhoids. Although he has been examined by a doctor on several occasions, his medical treatment has been inadequate or unresponsive and his medical condition has deteriorated with the passage of time; and
q) the impact of these conditions has been exacerbated by his health problems and by the prolonged periods of time for which Mr. Caesar has been incarcerated.

Arguments of the representatives

51. The representatives, with respect to Article 5 of the American Convention, stated that:
a) any sentence of whipping or flogging is cruel, inhuman and degrading. Moreover, the principle of humanity requires the prohibition of all corporal punishment;
b) the term “torture” applies to the aggravated mistreatment of persons. Torture might be expected to leave long-term effects, either by way of post-traumatic
stress, or serious injury, but it need not to do so. Torture is often associated with actions that subject the alleged victim to sustained and unpredictable cruelty over which there is no legal restraint. Furthermore, punishment duly prescribed by law is capable of amounting to torture. Finally, cruel, inhuman or degrading punishment inevitably causes problems that cannot be remedied;

Regarding Mr. Caesar's Corporal Punishment
c) the sentence of corporal punishment and the manner in which it was carried out violate Articles 5.1 and 5.2 of the Convention;
d) the time limit established by the Corporal Punishment Act for carrying out the
flogging is absolute and cannot be extended because of the prisoner’s illhealth;
e) the execution of the judgment that ordered corporal punishment or treatment is cruel, inhuman and degrading itself, even without the aggravating factors that Mr. Caesar suffered. Moreover, the corporal punishment was carried out 23 months after his sentencing and was therefore in flagrant violation of the State’s own law;
f) Mr. Caesar experienced severe anguish, stress and fear as he was exposed to the suffering of other inmates, as well as during the moments immediately
preceding his actual flogging, due to his recent hemorrhoid surgery;
g) the carrying out of the corporal punishment in the presence of complete strangers severely humiliated Mr. Caesar;
h) the doctor present during the corporal punishment breached his ethical code by permitting the punishment to be executed, as he was fully aware of the
alleged victim’s health condition; and
i) the State violated Article 2 of the Convention by failing to give domestic legal effect to the rights protected under Article 5 of the Convention; Regarding Mr. Caesar’s detention conditions
j) the conditions of detention to which Mr. Caesar has been subjected violate Articles 5.1 and 5.2 of the Convention and, moreover, fail to meet the
standards required by the relevant United Nations Minumum Rules; and
k) Mr. Caesar was not given the necessary surgery until five or six years after the pertinent medical recommendation, in breach of the relevant United Nations Minimum Rules, a situation that worsened his condition. The date of the hemorrhoid operation mentioned by Mr. Caesar may be incorrect, as it may have occurred in early 1997.

The Court’s assesment

52. Article 5(1) and 5(2) of the Convention provide:
1. Every person has the right to have his physical, mental, and moral integrity respected.

2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with
respect for the inherent dignity of the human person.

53. Article 1(1) of the American Convention stipulates:
[t]he States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political oar other opinion, national or social origin, economic status, birth, or any other social condition.

54. Article 2 of the American Convention provides:
[w]here the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.

55. In this section the Court will address the following issues under Article 5(1) and 5(2), in relation to Articles 1(1) and 2, of the Convention:
a) the lawfulness of the State’s imposition of the corporal punishment of flogging under said provisions and the manner in which the judicial corporal punishment was inflicted upon Mr. Caesar;
b) whether the State has failed to comply with its general obligation under Article 2 of the Convention to give domestic legal effect to the rights protected under Article 5; and
c) whether Mr. Caesar’s conditions of detention amounted to a violation of said provisions on the part of the State.
*
Regarding the lawfulness of the State’s imposition of the corporal punishment of flogging under Article 5(1) and 5(2), in conjunction with Article 1(1), of the Convention, and the manner in which the judicial corporal punishment was inflicted upon Mr. Caesar

56. The Commission submitted that the form of punishment to which Mr. Caesar was subjected, is “by its nature, intention and effects [inherently] inconsistent with
the [minimum] standards of humane treatment under Articles 5(1) and 5(2) of the American Convention”.

57. To judge whether the State violated Article 5(1) and 5(2) of the American Convention in the instant case, the Court must first decide upon the compatibility of
a state’s imposition of corporal punishment, specifically by flogging, with regard to said provision. To this end, the Court deems it pertinent to offer an overview of this punishment under international and domestic law and practice.

58. Every international human rights instrument of general scope, whether regional or universal, contains provisions similar in content to Article 5 of the American Convention.14 These general provisions are complemented by the express prohibition of torture and other cruel, inhuman or degrading treatment or punishment in particular international instruments and, of relevance to the instant case, the prohibition of the use of corporal punishment.15

59. The Inter-American Court has held that

[…] torture and cruel, inhuman or degrading punishment or treatment are strictly prohibited by international human rights law. The prohibition of torture and cruel,
inhuman or degrading punishment or treatment is absolute and non-derogable, even under the most difficult circumstances, such as war, threat of war, the fight against terrorism and any other crimes, martial law or a state of emergency, civil commotion or conflict, suspension of constitutional guarantees, internal political instability or other public emergencies or catastrophes.16

60. In particular, international case law and the following authorities have considered that corporal punishment is incompatible with international guarantees
against torture and other cruel, inhuman or degrading treatment.

61. The United Nations Special Rapporteur on Torture has stated that Article 31 of the United Nations Standard Minimum Rules for the Treatment of Prisoners reflects the international prohibition of cruel, inhuman or degrading treatment, and, more broadly, that "corporal punishment is inconsistent with the prohibition against torture, and cruel, inhuman or degrading treatment or punishment enshrined, inter alia, in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Declaration on the Protection of All Persons from Being Subjected to Torture, Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention against Torture, Cruel, Inhuman or Degrading Treatment or Punishment.”17

62. Similarly, the United Nations Human Rights Committee has concluded that the prohibition of torture and cruel, inhuman or degrading treatment or punishment
contained in Article 7 of the International Covenant on Civil and Political Rights should be extended to corporal punishment, “including excessive chastisement ordered as punishment for a crime, or as an educative or disciplinary measure”.18 With respect to the use of corporal punishment in Trinidad and Tobago, the
Committee specified in its Concluding Observations on a report submitted by Trinidad and Tobago under Article 40 of the Covenant that it was “disturbed to learn that apart from prohibiting corporal punishment for persons under 18 years of age, the State party is still practicing the punishment of flogging and whipping which are cruel and inhuman punishment prohibited by article 7.” It thus recommended that the State immediately abolish all sentences of flogging or whipping.19

63. The Human Rights Committee has reached similar conclusions in its decisions on individual complaints. For example, in the case of Sooklal v. Trinidad and Tobago, the Committee ruled that the administration of birching provided for by the law of the State as a sanction constitutes cruel, inhuman or degrading treatment or punishment contrary to Article 7 of the Covenant. Similarly, in the case Osbourne v. Jamaica, the Committee found that by carrying out a sentence of whipping with a tamarind switch, the State party had breached its obligations under said provision.20 In that ruling the Committee stated that:

[i]rrespective 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 and degrading treatment or punishment contrary to Article 7 of the Covenant.

64. In the Case of Tyrer v. United Kingdom, the European Court of Human Rights addressed the incompatibility of corporal punishment with the right to humane
treatment under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In the case of a minor who had been subjected to three strokes of the birch pursuant to domestic legislation in the Isle of Man (United Kingdom), the Court concluded that the treatment was degrading and as such violated Article 3 of the European Convention. The European Court held that: [t]he very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, it is institutionalised violence, that is in the present case violence permitted by the law, ordered by the judicial authorities of the State and carried out by the police authorities of the State […] Thus, although the applicant did not suffer any severe or long-lasting physical effects, his punishment - whereby he was treated as an object in the power of the authorities - constituted an assault on precisely that which it is one of the main purposes of Article 3 (art. 3) to protect, namely a person's dignity and physical integrity. Neither can it be excluded that the punishment may have had adverse psychological effects. The institutionalized character of this violence is further compounded by the whole aura of official procedure attending the punishment and by the fact that those inflicting it were total strangers to the offender.21

65. Furthermore, norms of international humanitarian law absolutely prohibit the use of corporal punishment in situations of armed conflict, as well as in times of
peace.22

66. It should be noted that a number of those States that still retained corporal punishment have recently abolished it.23 Moreover, an increasing number of
domestic courts have concluded that the imposition of corporal punishment, regardless of the circumstances of the case and the modalities through which it is
carried out, constitutes cruel, inhuman and degrading treatment, and represents a form of punishment no longer acceptable in a democratic society.24

67. The European Court of Human Rights has held that a treatment must attain a minimum level of severity in order to be considered inhuman or degrading and, in
the extreme, torture. The evaluation of this minimum level is relative and depends on the circumstances of each case, such as the duration of the treatment, and its
physical and mental effects.25

68. Furthermore, in the Celebici case the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia analyzed international humanitarian law
and human rights law standards, on the basis of which it defined inhuman or cruel treatment as: […] an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.26

69. For its part, the Inter-American Court has, since the case of Loayza Tamayo v. Perú, held that: [t]he violation of the right to physical and psychological integrity of persons is a category of violation that has several gradations and embraces treatment ranging from torture to other types of humiliation or cruel, inhuman or degrading treatment with varying degrees of physical and psychological effects caused by endogenous and exogenous factors which must be proven in each specific situation. The European Court of Human Rights has declared that, even in the absence of physical injuries, psychological and moral suffering, accompanied by psychic disturbance during questioning, may be deemed inhuman treatment. The degrading aspect is characterized by the fear, anxiety and inferiority induced for the purpose of humiliating and degrading the victim and breaking his physical and moral resistance.27

70. The abovementioned international instruments and its own case law lead the Court to conclude that there is a universal prohibition of torture and other cruel,
inhuman or degrading treatment or punishment, independent of any codification or declaration, since all these practices constitute a violation of peremptory norms of international law.28 The Court also notes the growing trend towards recognition, at international and domestic levels, of the impermissible character of corporal
punishment, with regard to its inherently cruel, inhuman and degrading nature. In consequence, a State Party to the American Convention, in compliance with its
obligations arising from Articles 1(1), 5(1) and 5(2) of that instrument, is under an obligation erga omnes to abstain from imposing corporal punishment, as well as to prevent its administration, for constituting, in any circumstance, a cruel, inhuman or degrading treatment or punishment.

71. In the instant case, Mr. Caesar was subjected to corporal punishment by flogging, pursuant to a sentence delivered by the High Court of Trinidad and Tobago, according to the terms of Trinidad and Tobago’s Corporal Punishment Act. This law authorizes domestic courts to order the application of sentences of corporal punishment for certain crimes, for any male offender, in addition to any other punishment for which he is liable, whether by flogging with a “cat-o-nine tails” or by whipping with a tamarind rod, birch or other switches, “or in either case such other instruments as the President may from time to time approve” (supra para. 49(7)).

72. According to the evidence presented to the Court, the “cat-o-nine tails” consists of a plaited rope instrument made up of nine knotted thongs of cotton cord,
30 inches long and less than one quarter of an inch in diameter, attached to a handle, which are lashed across the back of the subject, between the shoulders and
the lower area of the spine (supra para. 49(8)). The instrument is designed to bruise and lacerate the skin of the subject and is also intended to cause severe
physical and psychological suffering. As such, the Court is convinced that the cat-onine tails, as regulated and used in Trinidad and Tobago for the administration of corporal punishment by flogging, is used to inflict a cruel, inhuman and degrading form of punishment.

73. Regarding the law and practice in Trinidad and Tobago of judicial corporal punishment by flogging, the Court considers that the very nature of this punishment
reflects an institutionalization of violence, which, although permitted by the law, ordered by the State’s judges and carried out by its prison authorities, is a sanction
incompatible with the Convention.29 As such, corporal punishment by flogging constitutes a form of torture and, therefore, is a violation per se of the right of any
person submitted to such punishment to have his physical, mental and moral integrity respected, as provided in Article 5(1) and 5(2), in connection with Article
1(1) of the Convention. Accordingly, Trinidad and Tobago’s Corporal Punishment Act must be considered in contravention to Article 5(1) and 5(2) of the Convention (infra para. 94).

74. While the Inter-American Court is neither authorized nor required by the Convention to pronounce on the compatibility of the actions of individuals with the
Convention, it is nevertheless obvious that the conduct and decisions of civil servants and state agents must be framed within those international obligations. In the
instant case, where the Corporal Punishment Act of Trinidad and Tobago gives the relevant judicial officer an option to order corporal punishment in addition to
imprisonment in certain circumstances, the Court feels bound to put on record its profound regret that the presiding officer in the State´s High Court saw fit to
exercise an option which would manifestly have the effect of inflicting a punishment that is not merely in blatant violation of the State´s international obligations under the Convention, but also is universally stigmatized as cruel, inhuman, and degrading.
*
75. The Court will now examine the particular circumstances in which Mr. Caesar’s sentence of corporal punishment was carried out.

76. It is established that State agents flogged Mr. Caesar with a “cat-o-nine tails” on February 5, 1998. Mr. Caesar´s affidavit leaves little to the imagination
concerning the physical and emotional impact of this punishment, as well as the anguish and suffering he experienced in the moments immediately preceding the
punishment. He described the experience as follows:
[…] On 5 February 1998, I received 15 strokes with the cat-o-nine tails. […] there were 4 other men in the cell with me. I was the last to be beaten. I was even more frightened this time […] I was still recuperating and was weak when they took me to be beaten. I was afraid that I would not come out of the beating alive because of my condition. […]

[…] I was taken to the room where I was to be beaten. […] the prison doctor, […] the Chief Infirmary Officer at the Port of Spain Prison, a Prison Supervisor […], two other men who I did not know but I believe that they were from the Ministry of National Security and two prison officers were present in the room. [The prison doctor] told me to take off my clothes. I told [him] that I just had surgery. He knew this. He did not reply. I took my clothes off. [The prison doctor] took my blood pressure [and] then said “he alright, go ahead.” […]

[…] I was then made to lie spread eagled and naked on a metal contraption, known among the prisoners as the “Merry Sandy.” It had that kind of spread-eagled shape. I could not turn my head. I could only stare ahead. The two prison officers strapped me on to the “Merry Sandy”. They tied my hands and feet tightly to it. They then covered my head with a sheet. I was scared. I was nauseous. My body was shaking. I felt a terrible painful lash to my shoulder. My body tensed. I heard a male voice say “one”. This was the man beating me. I did not know who he was. The man beating me waited for my muscles to relax, brought the cat-o-nine down on by [sic] back again and said “two”. Each time he waited for my muscles to become less tense before hitting me. Each time he said out loud the number of lashes I had already received. The pain was unbearable. All this time he was lashing me I was screaming in pain, becoming hysterical, screaming that they were trying to kill me. I cannot remember how many blows I received when I began to feel faint […] The beating nevertheless continued and I passed out. When I awoke I was lying on a stretcher in the same room. The Superintendent said that I was to be taken to the infirmary.
[…] I remained in the infirmary for 2 months after the beating. I was beaten on my back and shoulders. My shoulders were bruised and I was in a lot of pain. I was weak.
[…] I received no medical treatment for the beating except painkillers. I was kept in the infirmary because I was ill and weak from surgery and the authorities were afraid something might happen to me.
[…] Up to the present time I continue to feel the blows and still suffer pain in my shoulders.30

77. The physical harm and pain caused by the flogging were exacerbated by the anguish, stress and fear Mr. Caesar suffered during the period in which he awaited his punishment. Moreover, on three or four separate occasions, he was exposed to the suffering of other prisoners subjected to similar punishment. He stated: I was trembling. I was taken downstairs to another cell block and put in a cell with four other men. We were kept in the cell overnight. I was tense and frightened and did not sleep that night. […] The officers [took one of the prisioners and] brought him back about half an hour after. […] I became very frightened when I saw his condition. […] It was mental torture waiting for my turn and I was shaking. […] I was subjected to the same thing on 3 further occasions. On each of those occasions I was placed in a cell downstairs with four other prisoners. On each occasion the other men were beaten and I was not. It was a lot of torture for me. […] I watched some of them cry. […] I suffered mental and emotional torture. I was very frightened each time. […]31

78. Mr. Caesar was subjected to the threat of imminent physical abuse, which could have been inflicted at any moment, and was deliberately forced to witness the
effects of such punishment upon the other prisoners, causing him severe anguish and fear.

79. Moreover, the Court shares the Commission’s view that the sentence was carried out in a manner that severely humiliated Mr. Caesar. He was forced to lie
“spread-eagled and naked” on a metal contraption before at least six persons, completely immobilized, while the strokes were delivered.

80. In keeping with domestic regulations and practice,32 the prison doctor was present before and during the alleged victim’s flogging to advise on the prisoner’s
physical condition, and to decide whether the punishment could be safely carried out. The representatives alleged that, by authorizing the flogging despite his knowledge of Mr. Caesar’s medical condition, the prison doctor acted in violation of his ethical duty. The Commission argued that such circumstances raise serious questions as to whether the medical personnel in the State’s prisons comply with international standards governing the conduct of health personnel, in particular those set forth in the United Nations’ Principles of Medical Ethics Relevant to the Role of Health Personnel in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.33

81. As noted above, the Court does not assess individual responsibilites; its function is rather to protect the victims, determine when their rights have been
violated and order reparation for the damage caused by the State responsible for such acts.34

82. The Commission also argued that the evidence presented confirms that the suffering experienced by Mr. Caesar was also exacerbated by his own vulnerable medical condition, specifically owing to his surgery for hemorrhoids only weeks before the flogging. The alleged victim himself affirmed this situation in his affidavit. However, the representatives stated during the public hearing that the date alleged as the day of the surgery may have been incorrect.

83. It was proven that the alleged victim developed hemorrhoids during his detention and, as a result, underwent surgery in January 1997 (supra para. 49(19)).
Since there is no showing that the abovementioned surgery occurred a few weeks before the flogging, there are no grounds for finding aggravating circumstances in this context.

84. It is established that, after the flogging, the only medical treatment provided by the State consisted of painkillers, notwithstanding the fact that he had been
injured and that his medical condition was already precarious. This conclusion is supported by Robert Ferris’ statement that he found no medical records of any kind relating to the corporal punishment, its effects on Mr. Caesar or any treatment provided (supra para. 49(29)).

85. The Commission further argued that, since the punishment was carried out 23 months after the alleged victim’s sentencing, it was in flagrant violation of the
State’s own domestic law, as well as contrary to Article 5(1) and 5(2) of the Convention.

86. The Court notes that Section 6 of the Corporal Punishment Act of Trinidad and Tobago requires a sentence of corporal punishment to be carried out within six months from the date of sentencing. As shown above, the 1994 amendment to the Corporal Punishment Act provided that any period of appeal would not count in reckoning the statutory limit of six months (supra para. 49(9)). This amendment, however, was not applicable to Mr. Caesar’s situation, since he was sentenced prior to its entry into force. In any event, the flogging was performed some five years and seven months outside the statutory limit, so that it can be reasonably assumed that the delay both augmented and extended his mental anguish.35

87. The Court, thus, has endeavored to assess all of the aggravating circumstances which arose in the infliction of Mr. Caesar’s punishment and has taken into account the degree of intensity of physical and mental pain suffered by him, which was in turn exacerbated by the treatment he received before and after the
flogging. In that regard, the Commission argued that there has been an additional violation of the Convention in relation to those aggravating circumstances.

88. In the preceding paragraphs, the Court declared that the corporal punishment by flogging, as it was examined in the instant case, must be considered as a form of torture and is, therefore, contrary per se to Article 5(1) and 5(2) of the Convention and to peremptory norms of international law (supra para. 73). Furthermore, the Court is cognizant of the severe aggravating circumstances discussed above, namely: the extreme humiliation caused by the flogging itself; the anguish, stress and fear experienced while awaiting the punishment in prison, a period that was marked by excessive delay; and Mr. Caesar’s observation of the suffering of other prisoners who had been flogged. The extreme gravity and the degree of intensity of physical and psychological suffering caused by these circumstances upon Mr. Caesar will be considered when assessing the pertinent reparations (infra para. 127).

89. In all the circumstances, therefore, the Court finds that the State violated Article 5(1) and 5(2), in connection with Article 1(1), of the Convention, to the
detriment of Mr. Winston Caesar.
*
On whether the State has failed to comply with its general obligation under Article 2 of the Convention to give domestic legal effect to the rights protected under Article 5 of said Convention.

90. The Court now will assess whether the State has fulfilled its general obligations under Article 2 of the Convention in this regard.

91. In interpreting Article 2 of the Convention, the Court has held that:36 [i]f the States, pursuant to Article 2 of the American Convention, have a positive
obligation to adopt the legislative measures necessary to guarantee the exercise of the rights recognized in the Convention, it follows, then, that they also must refrain both from promulgating laws that disregard or impede the free exercise of these rights, and from suppressing or modifying the existing laws protecting them. These acts would likewise constitute a violation of Article 2 of the Convention.

92. The violations of Article 5(1) and 5(2) of the Convention to the detriment of Mr. Caesar resulted not only from the actions and omissions of State agents, but
above all from the very existence and the terms of Trinidad and Tobago’s Corporal Punishment Act (supra para. 73).

93. The Court has declared this law to be incompatible with Article 5 of the American Convention. Once the Convention entered into force for Trinidad and
Tobago, the State should have adapted its legislation to the obligations set forth in that treaty, as to ensure the most effective protection of the human rights
enumerated therein. It should be reaffirmed that, pursuant to Article 2 of the Convention, the duty to adapt domestic legislation is by its very nature one of results
and, therefore, the denunciation of the Convention cannot extinguish the State’s international obligations assumed while the treaty was in force. Such obligations
have an autonomous and automatic character and do not depend upon an actual ruling of the Convention’s organs of supervision regarding a specific domestic law.

94. Having declared the incompatibility of the Corporal Punishment Act with the Convention, the Court finds that, by its failure to abrogate this law following its
ratification of the Convention, the State did not comply with its obligations under Article 2, in relation to Article 5(1) and 5(2) of the Convention.
*
On whether Mr. Caesar’s conditions of detention constitute a violation of Article 5(1) and 5(2) of the Convention.

95. The Commission argued that the State is responsible for further violations of Mr. Caesar’s right to humane treatment under Article 5(1) and 5(2) of the Convention due to the conditions in which he has been detained. The Commission submitted that, owing to these conditions of detention, the State has failed to meet domestic and international standards in its treatment of Mr. Caesar. Furthermore, the Commission argued that the impact of these conditions has been aggravated by the prolonged periods of time during which Mr. Caesar has been incarcerated in connection with his criminal proceedings.

96. In this regard, the Court has held that, in accordance with Article 5(1) and (2) of the Convention, […] all persons deprived of their liberty have the right to detention conditions that are compatible with their human dignity. On other occasions, the Court has indicated that detention in conditions of overcrowding, with lack of ventilation and natural light, without a bed for rest and adequate sanitary conditions, in isolation or with undue restrictions upon the visiting schedule, constitute a violation of the right to humane treatment. 37

97. In addressing the issue of prison conditions, the Court has taken note of other international instruments, as well as the case law of other international human rights institutions. Recently, the Court has held that the State is placed in a special position of guarantor in relation to persons deprived of their freedom, since penitentiary authorities have full control over the persons subjected to their custody.38 In this very particular context of subordination between the detainee and the State, the latter has a special responsibility to ensure to those persons under its control conditions that permit them to retain a degree of dignity consistent with their inherent and non-derogable human rights.39

98. In the Case of Hilaire, Constantine and Benjamin et al., the Court found that the conditions of detention in several Trinidad and Tobago prisons were characterized by serious overcrowding, inadequate sanitation and poor hygiene and medical care. The Court concluded that the conditions in which the victims of that case were incarcerated were “in fact indicative of the general conditions in Trinidad and Tobago’s prison system”, compelling the victims “to live under circumstances that impinge on their physical and psychological integrity and therefore constitute cruel, inhuman and degrading treatment”.40

99. As set out in the proven facts of this judgment, during his detention Mr. Caesar has been held along with other prisoners in small and poorly ventilated cells,
equipped with a slop pail instead of a toilet, and has been obliged to sleep on the floor. Since his incarceration, Mr. Caesar has also suffered from serious health
problems. Although examined by medical personnel on several occasions, Mr. Caesar’s medical treatment has nonetheless been inadequate and his health
conditions have deteriorated with the passage of time (supra paras. 49(16) and 49(18)).

100. The Court finds that the conditions of detention to which Mr. Caesar has been subjected have failed to respect his physical, mental, and moral integrity as required under Article 5(1) of the Convention, and constitute inhuman and degrading treatment contrary to Article 5(2) of the Convention, which enshrines provisions of jus cogens. Therefore, the Court holds that the State is also responsible for the violation of these provisions, in conjunction with Article 1(1) of the Convention, to the detriment of Mr. Winston Caesar.

IX ARTICLES 8 AND 25 OF THE AMERICAN CONVENTION IN CONJUNCTION WITH ARTICLES 1(1) AND 2 OF THE CONVENTION
(RIGHT TO A FAIR TRIAL AND JUDICIAL PROTECTION)
Arguments of the Commission

101. The Inter-American Commision, with reference to Articles 8 and 25 of the American Convention, stated that:


a) the State is responsible for violating Mr. Caesar’s right to be tried within a reasonable time, under Article 8.1 of the Convention, because of the delay in his criminal proceeding;
b) Mr. Caesar suffered a total delay of 15 years between his initial arrest on November 11, 1983 and November 9, 1998, when the counsel informed Mr.
Caesar's lawyers that his attempt to pursue a final appeal before the Judicial Committee of the Privy Council was unlikely to succeed. This period represents an unreasonable delay that far exceeds the delay in previous cases in which the Court has found violations of Article 8.1 of the Convention. The State has not provided any explanation for this delay, nor do any facts appear from the record that might account for such delay;
c) Section 6 of Trinidad and Tobago’s Constitution precludes any appeal against the constitutionality of the Corporal Punishment Act;
d) the State is responsible for violating Mr. Caesar’s right to judicial protection under Article 25 of the Convention, as well as its obligations under Article 2 of
the Convention, in connection with Articles 7(5) and 8(1) of the Convention, by failing to guarantee, under its domestic law, the right to be tried within a reasonable time;
e) the Constitution of Trinidad and Tobago does not include among its prescribed fundamental rights and freedoms the right to a trial within a reasonable time,
fact that has been confirmed by the Judicial Committee of the Privy Council; and
f) although Mr. Caesar was released by the State prior to his trial and therefore did not need to invoke Article 7(5) of the Convention, the evidence indicates
that the State’s failure to provide for the right to be tried within a reasonable time under Article 8(1) also necessarily implies, as a general proposition, failure to protect the corresponding right under Article 7(5) of the Convention.

Arguments of the representatives

102. The representatives of the alleged victim, with respect to Articles 8 and 25 of the American Convention, stated that:
a) the State violated Article 8 of the Convention by failing to provide Mr. Caesar with a trial and appeal proceedings within a reasonable time;
b) the State violated Article 25 of the Convention, as it failed to provide Mr. Caesar with a means of effective domestic recourse;
c) Mr. Caesar was subjected to a total delay of 12 years between his initial arrest and his attempt to pursue an appeal before the Judicial Committee of the Privy Council;
d) both the sentence itself and the manner in which it was carried out are inconsistent with and violate the right enshrined under Section 4(a) and Section 5(2)(b) of Trinidad and Tobago’s Constitution. However, the violations of the rights enshrined in said Sections, are not capable of remedy in domestic courts because of the “savings clause” in Section 6(1) of the Constitution. Nevertheless, States cannot evade their obligations under human rights treaties by reliance upon “savings clauses” that have the effect of undermining or defeating domestic implementation of those obligations; and
e) The State violated Article 2 of the Convention by failing to give domestic legal effect to the rights protected under Article 8 of the Convention.

The Court’s assesment

103. Article 8(1) of the American Convention provides for the right to a fair trial as follows:
Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.

104. Article 25(1) of the American Convention guarantees the right to judicial protection as follows:
Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.

105. There are two issues that the Court must address regarding the alleged violations of Articles 8(1) and 25, all in connection with Articles 1(1) and 2, of the
American Convention:
a) the reasonableness of the length of the criminal proceedings; and
b) whether the domestic law of the State provides an effective remedy against either the existence or the application of corporal punishment.
*
106. The Court notes that, after the judgment delivered by the Court of Appeal of Trinidad and Tobago on February 28, 1996, Mr. Caesar still had the possibility to apply for leave to appeal to the Privy Council. The Court cannot share the Commission’s view that Mr. Caesar was subjected to a total delay of fifteen years in
the proceedings, to be calculated between his initial arrest in 1983 and his “attempt to pursue an appeal before the Judicial Committee of the Privy Council in 1998”. That “attempt” consisted in a legal opinion rendered in November 1998 by counsel in London, at the request of Mr. Caesar’s lawyers, and therefore cannot be equated to a procedural step in a judicial process. The length of the proceedings must be calculated, therefore, on the basis that the final judgment in the case was reached with the decision of the Court of Appeal of Trinidad and Tobago on February 28, 1996.

107. Although neither the Commission nor the representatives raised the issue of the Court´s ratione temporis jurisdiction, it is incumbent on the Tribunal to consider this question in the context of the actual duration of the criminal proceedings in order to come to a conclusion as to the reasonableness of the time elapsed, for the purpose of deciding whether there was a violation of the rights enshrined in Article 8(1) of the Convention.

108. On this point, the Court has held as follows:
When codifying general law on this issue, Article 28 of the Vienna Convention on the Law of Treaties establishes that:

Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place
or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.41

109. In cases where the Court decided that it had no ratione temporis jurisdiction to decide upon certain facts, it has made it clear that this situation does not imply a judgment about the existence of those facts.42

110. In cases where the applicant alleged the violation of Articles 5(3) or 6(1) of the European Convention on Fundamental Rights and Freedoms, the European Court of Human Rights has restricted its considerations to the time period that falls into its ratione temporis jurisdiction, starting from the date on which the State recognized the right of individual petition or ratified the Convention. It is significant, however, that the European Court nevertheless takes into account the amount of time that has elapsed before this effective date – in cases of detention or in a legal proceeding, for example – in its assessment of rights violations.43

111. The Court notes that the criminal proceedings lasted for more than 12 years, if calculated from the first arrest of Mr. Caesar on November 11, 1983, as the
Commission and the representatives have done. However, as Trinidad and Tobago’s recognition of the Court’s compulsory jurisdiction took effect on May 28, 1991, the Court can only consider the period between the date of that recognition and the decision of the Court of Appeal on February 28, 1996, the final judgment delivered in the criminal proceedings. Mr. Caesar was convicted on January 10, 1992 by the High Court of Trinidad and Tobago. His lawyers waited for almost two years to request leave to appeal and, on February 28, 1996, the Court of Appeal dismissed the appeal and confirmed the sentence. Therefore, the Court finds that the duration of the criminal proceedings between May 28, 1991, and February 28, 1996 – discounting the period of almost two years before that leave to appeal was sought – does not constitute a delay that can be considered unreasonable, in the terms of Article 8(1) of the Convention.

112. For the aforementioned reasons, the Court considers that the State is not responsible for a violation of Article 8(1) of the Convention.
*
113. The Court must now turn to examine whether the domestic law of the State provides an effective remedy against either the existence or the application of
corporal punishment.

114. In the instant case, domestic judges were authorized to sentence Mr. Caesar to flogging with the “cat-o-nine-tails” under the laws of Trinidad and Tobago –
specifically, the Corporal Punishment Act.

115. It is important to note that, even if Mr. Caesar had been able to appeal to the Privy Council, such an appeal would have been most unlikely to succeed. In this regard the expert witness Desmond Allum commented that: [o]ne of the fundamental reasons why there has been no substantial challenge to the legality of a sentence of corporal punishment is the “savings clause”. This clause effectively ensured that it was not open to [domestic] courts to impugn the constitutionality of a sentence of corporal punishment as this [clause] predated the coming into force of the 1976 Constitution, and accordingly, was “saved” into [Trinidad and Tobago’s] law as good law. In the recent case of Matthew v The State of Trinidad and Tobago, the Judicial Committee of the Privy Council considered the “savings clause” in the context of the death penalty. The majority of the Board of the Privy Council held that the mandatory death penalty is a cruel and unusual punishment, and is therefore inconsistent with Sections 4(a) and 5(2)(b) of the Constitution. However, a majority of the Board held that the legislation imposing the mandatory death penalty was passed prior to the Constitution, and, because of the “savings clause” in Section 6, it could not be invalidated by reference to the fundamental rights for which Sections 4 and 5 of the Constitution provide. Accordingly, the majority upheld the validity of the mandatory death penalty.44

116. Similarly, in a 2002 judgment with regard to a case in the Bahamas, the Judicial Committee of the Privy Council observed that “[…] it is accepted that flogging is an inhuman and degrading punishment and, unless protected from constitutional challenge under some other provision of the Constitution, is rendered
unconstitutional by [the provision of the Constitution prohibiting torture and inhuman or degrading treatment or punishment]”.45 Nevertheless, on the basis of the
“savings clause” in the Constitution of the Bahamas, the Privy Council upheld the constitutionality of the legislation authorising corporal punishment.

117. It follows from the above that the State did not provide the alleged victim with an effective remedy to challenge the application of the aforementioned corporal punishment. Therefore, the Court considers that Trinidad and Tobago is responsible for the violation of Article 25, in relation to Articles 1(1) and 2, of the Convention, to the detriment of Mr. Caesar.

X REPARATIONS
(Application of Article 63(1) of the American Convention)
Arguments of the Commission
118. The Commission argued that:

a) the State must pay the reasonable and justified material and moral damages related to the violations suffered by Mr. Caesar;
b) Mr. Caesar is entitled to receive a sum of compensation sufficient to reflect the fundamental and serious nature of the violations committed against him, both to provide adequate reparation as well as to deter
similar violations in the future;
c) it has no objection to the submission by the representatives of Mr. Caesar regarding Mr. Caesar's early release from prison, due to the circumstances of the present case; and
d) measures to ensure non-repetition of the violations suffered by Mr. Caesar are crucial to a just and effective resolution of the matter before the Court. In particular, the State must be compelled to adopt such legislative or other measures as may be necessary to:
i. give effect to the right to a trial within a reasonable time under Articles 7(5) and 8(1) of the Convention;
ii. abrogate or otherwise prohibit the punishment of flogging as provided for under its Corporal Punishment Act;
iii. ensure that conditions of detention in state prisons, including those of Mr. Caesar, comply with the standards of humane treatment mandated by Article 5 of the Convention; and
iv. abrogate the “savings clause” under Section 6 of Trinidad and Tobago's Constitution, insofar as that provision denies persons effective recourse to a competent court or tribunal for protection against acts that violate their fundamental rights recognized by Trinidad and Tobago's Constitution.

Arguments of the Representatives

119. The representatives claimed no sum of compensation for Mr. Caesar, considering that monetary compensation, which might normally be an appropriate
remedy, would be of limited use to him in his present situation in a maximum security prison. The representatives maintained that in cases where a violation has
taken place and cannot be undone, mitigation of penalty is a suitable remedy for a victim who remains in custody serving a sentence. Therefore, an appropriate remedy for the violation of Mr. Caesar's rights would be his immediate release from his sentence and that the remainder of that sentence be remitted. Moreover, as a consequence of having violated Article 2 of the Convention, the State is obliged to take the necessary measures to ensure consistency between its law and the
protections under the American Convention. Finally, the representatives claimed no costs or expenses before the Court, as they are acting pro bono.

The Court’s assessments

120. In accordance with the analysis set forth in previous chapters, the Court declared, based on the facts of the case, violations of Article 5(1) and 5(2) in
conjunction with Article 1(1) of the American Convention, Article 2, in relation to Article 5(1) and 5(2) of the Convention, and Article 25 in conjunction with Articles 1(1) and 2 of said instrument. The Court has held, on a number of occasions, that any violation of an international obligation resulting in harm carries with it an obligation to provide adequate reparations.46 Article 63(1) of the American Convention states that: [i]f the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party (emphasis added).

121. This provision constitutes a rule of customary law that enshrines one of the fundamental principles of contemporary international law on state responsibility.
Thus, when an illicit act is imputed to the state, there immediately arises a responsibility on the part of that state for the breach of the international norm involved, together with the subsequent duty to make reparations and put an end to the consequences of said violation.47

122. The reparation of harm caused by a violation of an international obligation requires, whenever possible, full restitution (restitutio in integrum), which consists in
restoring the situation that existed before the violation occurred. When this is not possible, as in the present case, it is the task of this Tribunal to order the adoption of a series of measures that, in addition to guaranteeing respect for the rights violated, will ensure that the damage resulting from the infractions is repaired, by way, inter alia, of payment of an indemnity as compensation for the harm caused.48 The obligation to make reparations, which is regulated in all its aspects (scope, nature, modalities, and designation of beneficiaries) by international law, cannot be altered or eluded by the State´s invocation of provisions of its domestic law.49

123. Reparations, as the term indicates, consist in those measures necessary to make the effects of the committed violations disappear. The nature and amount of
the reparations depend on the harm caused at both the material and moral levels. Reparations cannot, in any case, entail either the enrichment or the impoverishment of the victim or his or her family.50

124. In light of the abovementioned criteria, the Court will proceed to analyze the submissions of the Commission and the representatives regarding reparations, in
order to determine the pertinent remedial measures to be adopted in the instant case.
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A) MORAL DAMAGES

125. Moral damage may include suffering and affliction caused to the direct victims and their next of kin, detriment to very significant personal values, as well as nonpecuniary alterations in the conditions of existence of a victim or his or her family. Since it is not possible to assign a precise monetary equivalent to non-pecuniary damage, for purposes of comprehensive reparation to victims, the Court must turn to other alternatives: first, payment of an amount of money or delivery of goods or services that can be estimated in monetary terms, which the Court will establish through reasonable application of judicial discretion and equity; and second, acts or works which are public in their scope or effects, commitment to efforts seeking to avoid the repetition of violations, as well as recognition of the victim's dignity.51

126. It is well settled in international jurisprudence that a judgment constitutes, per se, a form of reparation. However, considering the circumstances of the present
case and its non-pecuniary consequences, the Court deems it appropriate that the moral damages must also be repaired, on grounds of equity, through the payment of compensation.52

127. In order to determine compensation for the moral damage suffered by the victim, the Court has taken into account the aggravating circumstances of his
corporal punishment with the “cat-o-nine tails”, namely the anguish, deep fear and humiliation suffered by Mr. Caesar prior to and during the flogging. Moreover, the Court notes that the delay in executing the sentence increased his anguish while he was waiting to be punished. As a result of the corporal punishment, Mr. Caesar continues to experience pain in his shoulders and he has also suffered, inter alia, from symptoms of depression, fear, and anxiety of a severity sufficient to allow the expert witness Robert Ferris to diagnose, at a minimum, an adjustment disorder. And finally, since his incarceration, the victim has suffered from serious health problems that have not been properly treated by state authorities (supra paras. 49(18), 49(19), 49(21), 49(31), 49(32) and 89).

128. Taking all of the elements of the present case into account, the Court sees fit, on grounds of equity, to direct Trinidad and Tobago to grant an indemnity of US $ 50.000,00 (fifty thousand United States of America dollars) to Mr. Winston Caesar for moral damages. The Court notes here that no specific arguments or requests regarding Mr. Caesar's next-of-kin were submitted.

B) OTHER FORMS OF REPARATION
(SATISFACTION MEASURES AND NON-REPETITION GUARANTEES)

129. In this chapter, the Court will determine the satisfaction measures to repair non-pecuniary damages; such measures seek to impact the public sphere.53

130. The Court declared that the imposition of corporal punishment by flogging is in absolute contravention to the Convention. The aberrant character of such
punishment has led the Court to conclude that Mr. Caesar was subjected to torture, as well as to other inhuman and degrading treatment due to the conditions of his detention (supra paras. 70, 73 and 100).

131. Furthermore, having examined the body of evidence submitted in the instant case, it is clear that Mr. Caesar’s physical and psychological problems persist and have not been properly treated (supra para. 49(32)). Consequently, as it has on other occasions,54 the Court directs the State to provide Mr. Caesar, with effect from the date of notification of this judgment, through its national health services, free of charge and for such period as may be necessary, such medical and psychological care and medication as may be recommended by appropriately qualified specialists.

132. Having found that the Corporal Punishment Act is incompatible with the terms of Article 5(1) and 5(2) of the Convention (supra paras. 73 and 94), the Court directs the State to adopt, within a reasonable time, such legislative or other measures as may be necessary to abrogate the Corporal Punishment Act.

133. The Court has held that “Section 6 of the Constitution of the Republic of Trinidad and Tobago of 1976 establishes that no law in effect prior to the date the
Constitution entered into force may be the object of constitutional challenge under Sections 4 and 5 […]. The Mandatory Death Penalty Act was declared incompatible with the American Convention and thus any provision that establishes that Act’s immunity from challenge is likewise incompatible, by virtue of the fact that Trinidad and Tobago, as a Party to the Convention at the time that the acts took place, cannot invoke provisions of its domestic law as justification for failure to comply with its international obligations”.55 Similarly, inasmuch as it immunises the Corporal Punishment Act from challenge, the “savings clause” under Section 6 of Trinidad and Tobago's Constitution is incompatible with the Convention. Therefore, the Court orders the State to amend, within a reasonable time, Section 6 of Trinidad and Tobago's Constitution insofar as that provision denies persons effective recourse to a competent court or tribunal for remedy against violations of their human rights.

134. The Commission and the representatives also argued that the State’s penitentiary system permits prisoners to be detained in conditions that fail to respect
their rights to physical and mental integrity and to humane treatment. In this regard, the Court has also found that the prison conditions to which Mr. Caesar has been subjected are contrary to Article 5(2) of the Convention and are representative of Trinidad and Tobago’s prison system (supra para. 49(22) and 100). Therefore, the Court deems it necessary to order the State, as it did in the Case of Hilaire, Constantine, Benjamin et al.56, and as a guarantee of non-repetition, to adopt, within a reasonable time, all necessary measures to bring the conditions of its prisons into compliance with the relevant international human rights norms.

C) COSTS AND FEES

135. Since the representatives claimed no costs or expenses before the Court, as they are acting pro bono, and the Commission did not submit any observations on this point, the Court makes no award with regard to costs and expenses in the present case.

XI MEANS OF COMPLIANCE

136. The State is directed to pay the compensation ordered (supra para. 128) within one year of the notification of this judgment and to adopt the other measures
of reparation ordered in accordance with the provisions of paragraphs 131 to 134 of this judgment.

137. The payment of the compensation ordered in favor of the victim shall be made directly to him. If he has died, the payment shall be made to his heirs.

138. The State may comply with its obligations by payment in United States dollars or the equivalent amount in national currency, using the rate of exchange between the two currencies in force on the market in New York, United States of America, the day before payment, in order to make the respective calculation.

139. If, due to causes that can be attributed to the beneficiary of the compensation, he is unable to claim such compensation within the said period of one
year, the State shall deposit such amount in his favour in an account or a deposit certificate in a reputable national banking institution, in United States dollars or the
equivalent in Trinidad and Tobago currency and in the most favourable financial conditions allowed by legislation and banking practice. If, after ten years, the
compensation has not been claimed, the sum shall be returned to the State, with the interest earned.

140. The payment ordered in this judgment as compensation for moral damages may not be affected, reduced or conditioned by any current or future taxes or
charges. Consequently, it shall be paid in full to the victim in accodance with the present judgment.

141. If the State falls in arrears, it shall pay interest on the amount owed, corresponding to bank interest on arrears in Trinidad and Tobago.

142. In accordance with its consistent practice, the Court retains the authority, inherent in its competence, to monitor compliance with this judgment. The instant
case shall be closed when the State has fully implemented all of the provisions of this judgment. Within one year of notification of this judgment, the State shall provide the Court with a first report on the measures taken in compliance.

XII OPERATIVE PARAGRAPHS

143. Therefore,

THE COURT,

DECLARES,

Unanimously, that:

1. The State violated the right enshrined in Article 5(1) and 5(2) in conjunction with Article 1(1) of the American Convention on Human Rights, to the detriment of
Mr. Winston Caesar, in the terms of paragraphs 70, 73, 89 and 100 of this judgment.

2. The State breached its obligations established in Article 2 of the American Convention on Human Rights, in relation to Article 5(1) and 5(2) of the Convention,
to the detriment of Mr. Winston Caesar, in the terms of paragraph 94 of this judgment.

3. The State did not violate the right enshrined in Article 8(1) of the American Convention on Human Rights, for the reasons set forth in paragraphs 106 to 112 of
this judgment.

4. The State violated the right enshrined in Article 25 in conjunction with Articles 1(1) and 2 of the American Convention on Human Rights, to the detriment of Mr. Winston Caesar, in the terms of paragraphs 113 to 117 of this judgment.

5. This judgment constitutes, per se, a form of reparation, in the terms of paragraph 126 of this judgment.

AND DECIDES,

Unanimously, that:

1. The State shall pay the compensation ordered in paragraph 128 of this judgment to Winston Caesar for moral damages.

2. The State shall, with effect from the date of notification of this judgment, provide Mr. Winston Caesar, through its national health services, free of charge and
for such period as may be necessary, such medical and psychological care and medication as may be recommended by appropriately qualified specialists, in the
terms of paragraph 131 of this judgment.

3. The State shall adopt, within a reasonable time, such legislative or other measures as may be necessary to abrogate the Corporal Punishment Act (Offenders
Over Eighteen), in the terms of paragraph 132 of this judgment.

4. The State shall amend, within a reasonable time, Section 6 of Trinidad and Tobago's Constitution, in the terms of paragraph 133 of this judgment.

5. The State shall adopt, within a reasonable time, such measures as may be necessary to bring the conditions of detention in its prisons into compliance with the
relevant international human rights norms, in the terms of paragraph 134 of this judgment.

6. The State shall pay the compensation ordered in favor of Mr. Winston Caesar directly to him within one year of the notification of this judgment, in the terms of
paragraph 128 of this judgment.

7. The State may comply with the pecuniary dispositions in this judgment by payment in United States dollars or the equivalent amount in national currency,
using the rate of exchange between the two currencies in force on the market in New York, United States of America, on the day preceding the day of payment.

8. If, for reasons attributable to the recipient of the compensation herein ordered, he is unable to claim such compensation within the stipulated period of one
year, the State shall deposit such amount in his favour in an account or a deposit certificate in a reputable national banking institution, in the terms of paragraph 139
of this judgment.

9. The payment for moral damages ordered in this judgment shall not be subject to or affected or reduced by any existing or future taxes or charges, in the terms of paragraph 140 of this judgment.

10. If the State falls into arrears in the payments ordered, it shall pay interest on the amount owed at the going bank rate in Trinidad and Tobago.

11. It shall monitor compliance with this judgment and shall close the instant case when the State has fully implemented all of its provisions. Within one year of
the notification of this judgment, the State shall provide the Court with a report on the measures taken in compliance, in the terms of paragraph 142 of this judgment. Judges García-Ramírez, Jackman, Cançado-Trindade and Ventura-Robles advised the Court of their Concurring Opinions, which accompany this judgment.

Drafted in San José, Costa Rica, on March 11, 2005, in English and Spanish, both
texts being authentic.

VOTO CONCURRENTE DEL JUEZ SERGIO GARCÍA RAMÍREZ A LA SENTENCIA DE LA CORTE INTERAMERICANA DE DERECHOS HUMANOS EN EL CASO CAESAR VS. TRINIDAD Y TOBAGO
(11 DE MARZO DE 2005)

1. La sentencia de la Corte Interamericana de Derechos Humanos a la que agrego este Voto razonado, emitida el 11 de marzo de 2005 en el proceso sobre el
Caso Caesar vs. Trinidad y Tobago, suscita diversas cuestiones vinculadas con temas relevantes. Entre aquéllas figuran: extensión y vigencia de los deberes asumidos por el Estado parte en un convenio internacional; legitimidad de ciertas penas a la luz de las normas nacionales e internacionales acerca de la tortura y otros tratos crueles, inhumanos o degradantes; algunos extremos del debido proceso legal, señaladamente la observancia del “plazo razonable”; condiciones de detención de individuos procesados o sentenciados; y proporcionalidad entre el delito cometido y la sanción prevista en la ley y aplicada por el tribunal.

2. Todos esos temas, con la salvedad del mencionado en último término, fueron abarcados por la Corte Interamericana en la consideración del presente caso y en los puntos resolutivos de la sentencia respectiva. Por supuesto, también fue examinada la competencia del Tribunal para conocer este asunto, no obstante la denuncia de la Convención Americana por el Estado, que no compareció en el proceso, y la posible argumentación adversa a la competencia de la Corte Interamericana en función de la reserva –o limitación en el reconocimiento de la competencia-- formulada por aquél al tiempo de ratificar la Convención.

I. COMPETENCIA DE LA CORTE

3. En lo que concierne a la denuncia, conviene tomar en cuenta que los hechos sub judice ocurrieron cuando el Estado era parte en la Convención Americana. Por lo tanto quedan sujetos a la competencia ratione temporis de la Corte. Aun cuando el Estado no concurrió al juicio, la Corte impulsó de oficio el procedimiento. La normativa vigente confiere al Tribunal esta potestad, que constituye, al mismo tiempo, una obligación del órgano jurisdiccional.

4. Por lo que atañe a la restricción en el reconocimiento de la competencia ratione materiae, conviene considerar el criterio sustentado anteriormente por la
Corte a este respecto en los Casos Hilaire, Constantine y Benjamín y otros (Trinidad y Tobago). Excepciones preliminares. Sentencias del 1º de septiembre de 2001). En esa oportunidad se desestimó la restricción establecida por el Estado cuando ratificó la Convención y aceptó la competencia contenciosa del Tribunal interamericano. El rechazo obedeció a que la restricción fue formulada en términos a tal punto generales que afectan el objeto y fin del tratado e implican el condicionamiento total de la jurisdicción internacional por los órganos de justicia interna. Si se tuviera en pie una restricción de este carácter sería imposible conocer el alcance de la jurisdicción internacional, cuya actividad se vería sujeta a valoración y admisión de los órganos internos, caso por caso.

5. En el Voto razonado que acompañé a la citada sentencia del 1º de septiembre de 2001 señalé lo que a continuación transcribo y hoy reitero: “coincido con los Jueces que integran la Corte en el señalamiento de que la reserva o declaración formulada por Trinidad y Tobago en el instrumento de ratificación de la Convención (del 3 de abril de 1991, depositado el 28 de mayo del mismo año), a propósito de la jurisdicción contenciosa d