Victim:
The author
State
party: Trinidad and Tobago
Date of
communication: 20 February 1992 (initial submission)
Date of
decision on admissibility: 12 October 1995
The Human
Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting
on 28 July 1997,
Having
concluded its consideration of communication No.533/1993 submitted
to the Human Rights Committee by Mr. Harold Elahie, under the Optional
Protocol to the International Covenant on Civil and Political Rights,
Having
taken into account all written information made available to it
by the author of the communication, his counsel and the State party,
Adopts
the following:
___________
* The following
members of the Committee participated in the examination of the present
communication: Mr. Nisuke Ando, Mr. Prafullachandra N. Bhagwati, Mr.
Thomas Buergenthal, Ms. Christine Chanet, Lord Colville, Ms. Elizabeth
Evatt, Ms. Pilar Gaitan de Pombo, Mr. Eckart Klein, Mr. David Kretzmer,
Ms. Cecilia Medina Quiroga, Mr. Julio Prado Vallejo, Mr. Martin Scheinin,
Mr. Danilo Türk and Mr. Maxwell Yalden.
Views under article 5,paragraph 4, of the Optional Protocol
1. The author
of the communication is Harold Elahie, a Trinidadian citizen, currently
serving four years' imprisonment with hard labour at the State Prison,
Trinidad and Tobago. He claims to be a victim of violations of his
human rights by Trinidad and Tobago, but does not invoke any provision
of the International Covenant on Civil and Political Rights. The author's
release was scheduled for 26 November 1996.
The facts
as submitted by the author:
2.1 The author
was arrested on 6 July 1986 on charges of murder and several other
offenses (attempted murder, wounding with intent and shooting with
intent). He was brought before a magistrate and remanded in custody.
On 15 October 1986, the preliminary enquiry began; shortly afterwards,
the author was told by his attorney that the magistrate had been suspended
from his duties for alleged corruption.
2.2 The author
was not brought before another magistrate until 22 February 1988.
This magistrate continued the enquiry where it had been left in 1986.
The author was committed to stand trial on 25 May 1988, it is not
clear for which offence he was finally indicted. It appears from his
letters that one of the indictments, dated 9 July 1990, was to be
heard on 18 November 1990, but that prior to the hearing the defence
filed a motion against this indictment on the ground that it was based
on an illegal committal order. According to the author, the prosecution
agreed and, on 19 March 1991, the judge quashed the indictment and
ordered a new preliminary enquiry. The defence appealed the order,
but it was apparently dismissed, since the author states: " [a]
second enquiry was concluded against me by another magistrate".
2.3 A new
trial was scheduled and on 25 March 1994, the author was sentenced
to four years' imprisonment with hard labour, after pleading guilty
to a charge of manslaughter. The State party, in its submission, observes
that the author was sentenced on 25 March 1994 for manslaughter, and
that the other charges were dropped.
2.4 The author
adds that he pleaded guilty of manslaughter, on his lawyer's advice,
in order to clarify his situation and expedite the proceedings. He
further states that his lawyer advised him not to appeal the sentence,
as appeal proceedings would take longer than the time he had left
to serve.
The Complaint:
3.1 Although
the author does not invoke specific provisions of the Covenant, it
transpires that he claims to be a victim of violations of article
10 paragraph 1, of the Covenant, on account of the conditions of his
detention, and of articles 9, paragraph 3, and 14, paragraph 3(c),
because of undue delay in the proceedings, as there was a seven year
delay between his arrest and detention and his conviction in 1994.
He complains that he was detained for 7 years and 8 months before
going to trial.
3.2 The author
further claims that he is subjected to inhuman and degrading treatment
in prison. In this context, he submits that he is detained, together
with four inmates, in a small cell. They have nothing but a "piece
of sponge" and old newspapers to sleep on, and food, which is
not fit for human consumption, is thrown at them "as if they were
pigs". Furthermore, whenever he is visited by his family, he is handcuffed
to another prisoner. The author alleges that whenever inmates complain
to the warders about the prison conditions, they are subjected to
"the worst kind of brutality", and that they are never permitted to
see the Commissioner of Prisons.
State
party's information and observations on admissibility and the
author's comments thereon:
4. In a submission
dated 20 March 1995, the State party confirms that the author has
exhausted all available domestic remedies in regard to his complaint
about the procedure adopted at the preliminary enquiry. It further
concedes that the author has exhausted domestic remedies with respect
to his complaints about prison conditions.
The Committee's
admissibility decision:
5. During
its 55th session, the Committee considered the admissibility of the
communication. It noted that the State party conceded that the author
had exhausted available domestic remedies, and observed that with
respect to the author's complaint that he was not treated with humanity
and with respect for the inherent dignity of the human person while
in detention, he had substantiated this claim for it to be considered
on its merits.
6.1 The Committee
further considered that the author had sufficiently substantiated,
for purposes of admissibility, that the delay in bringing him to trial
and his continued detention throughout this period, without the benefit
of bail and the time already served not having been taken into account,
might raise issues under article 9, paragraph 3, and 14, paragraph
3 (c), of the Covenant, which needed to be examined on the merits.
6.2 On 12
October 1995, the Human Rights Committee declared the communication
admissible in as much as it appeared to raise issues under article
10, paragraph 1; 9, paragraph 3, and 14, paragraph 3 (c), of the Covenant.
Further
information received from the State party:
7.1 In a
further submission on admissibility received after the adoption
of the admissibility decision the State party, had stated that on
19 March 1991, the author's original indictment has been quashed on
the ground that: "it was founded upon a committal which was void,
illegal, of no effect, and ultra vires the Indictable Offences (Preliminary
Enquires ) Act". The judge ordered that the indictment be quashed,
and that a new preliminary enquiry, be commenced de novo.
7.2 The result
of the new preliminary inquiry was that the author was committed to
stand trial for murder, attempted murder, wounding with intent and
shooting with intent. At the trial in the Assize's court, the author
pleaded guilty to manslaughter and on 25 March 1994, was sentenced
to four years' imprisonment with hard labor.
Examination
of the merits:
8.1 The Committee
has considered the communication in the light of all the information
provided by the parties as provided in article 5, paragraph 1, of
the Optional Protocol. It notes with concern that, following the transmittal
of the Committee's decision on admissibility, the State party has
provided no further information. The Committee recalls that it is
implicit in article 4, paragraph 2, of the Optional Protocol that
a State party examine in good faith all allegations brought against
it, and that it provide the Committee with all the information at
its disposal. In the light of the failure of the State party to cooperate
with the Committee on the matter before it, despite a reminder being
sent on 11 March 1997, due weight must be given to the author's allegations,
to extent that they have been substantiated.
8.2 The Committee
notes that the information before it shows that the author was arrested
on 6 July 1986, that shortly after the preliminary enquiry began,
the magistrate to whom the case was assigned was suspended and that
the author was not brought before a new magistrate until 22 February
1988. He was committed to stand trial on 25 May 1988. A constitutional
motion was filed, on 1 November 1990; resulting in the author's indictment
being quashed and a new preliminary enquiry being ordered, on 19 March
1991. The author was convicted of manslaughter on 25 March 1994. This
chronology reveals that the author was in detention for 7 years and
8 months before being sentenced on a plea of guilty of manslaughter.
The author received a sentence of four years of imprisonment with
hard labour which would appear to have been taken into account the
time he had already served. Nevertheless, the Committee considers
that, a period of 7 years and 8 months between the author's arrest
and the start of the trial against him, does in the absence of any
adequate explanations from the State party which would explain the
delay, amount to a violation of articles 9, paragraph 3, and 14, paragraph
3 (c), of the Covenant, since the trial against a person kept in detention
was neither instituted nor completed within a reasonable time and
since there were undue delays in the trial itself.
8.3 With
regard to the author's allegations of conditions of detention and
ill-treatment, the Committee notes that the State party has not offered
any information to refute the author's allegations. Due weight must
therefore be given to the author's allegation that he only had "a
piece of sponge and old newspapers" to sleep on, "food not
fit for human consumption" given to him, and that he was treated
with brutality by the warders whenever complaints were made. In the
Committee's view, the author was not treated with humanity and respect
for the inherent dignity of the human person, in violation of article
10, paragraph 1, of the Covenant.
9. The Human
Rights Committee, acting under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political Rights,
is of the view that the facts before it disclose violations of articles
10, paragraph 1; 9, paragraph 3, and 14, paragraph 3 (c), of the Covenant.
10. Pursuant
to article 2, paragraph 3 (a), of the Covenant, the author is entitled
to an effective remedy, including compensation for the ill-treatment
suffered and the undue delays in the adjudication of his case. The
Committee reaffirms the obligation to treat individuals deprived of
their liberty with respect for the inherent dignity of the human person.
The State party is under an obligation to ensure that similar events
do not occur in the future.
11. Bearing
in mind, that by becoming a State party to the Optional Protocol,
the State party has recognized the competence of the Committee to
determine whether there has been a violation of the Covenant or not
and that, pursuant to article 2 of the Covenant, the State party has
undertaken to ensure to all individuals within its territory and subject
to its jurisdiction the rights recognized in the Covenant and to provide
an effective and enforceable remedy in case a violation has been established,
the Committee wishes to receive from the State party, within ninety
days, information about the measures taken to give effect to the Committee's
Views.
[Adopted
in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in arabic, Chinese and Russian
as part of the Committee's annual report to the General Assembly.]