| |
1.1 The authors are Messrs.
Hazerat Hussain and Sumintra Singh, two nationals of Guyana. Mr. Hazerat
submits the communication on behalf of himself and three other Guyanese
nationals, Hafeez Hussain, Vivakanand Singh and Tola Persaud, also Guyanese
nationals imprisoned at the time of the communication. Mr. Sumintra Singh
submits the communication exclusively on behalf of his son, Mr. Vivakand
Singh. At the time of submission of the communication, Mr. Hafeez Hussain
and Mr. Vivakanand Singh were awaiting execution. While the authors do not
invoke any specific provisions of the International Covenant on Civil and
Political Rights, the communication appears to raise issues under articles 6
and 14 the Covenant. The alleged victims are not represented.
1.2 In accordance with rule 92 of the Committee's Rules of Procedure, the
Committee through its Special Rapporteur for New Communication, requested
the State party on 22 April 1999 not to carry out the death sentence against
Mr. Hussain and Mr. Singh, while their cases were under consideration by the
Committee.
FACTUAL BACKGROUND
2. On 1 September 1993, Arnold Ramsammy was robbed and shot dead in his
house. All four alleged perpetrators were arrested between 3 and 4 September
1993 in relation to the crime. On 26 March 1996, Hafeez Hussain and
Vivakanand Singh were convicted of murder. Pursuant to article 101 of the
Laws of Guyana: Criminal Law (Offences), which provides that "Everyone who
commits murder shall be guilty of felony and liable to suffer death as a
felon", the Magistrate's Court of the Corentyne District automatically
imposed the death sentence. On the same date, Hazrath Hussain and Tola
Persaud were convicted of manslaughter and sentenced to two years and three
years of imprisonment, respectively. In March of 1996, the four accused
appealed their convictions to the Court of Appeal. The grounds of appeal
were, inter alia, that the trial judge omitted to direct the jury adequately
on the law relating to identification, and that he did not adequately deal
with the effects the evidentiary statements said to be inconsistent.
THE COMPLAINT
3. The authors claim that the trial in Corentyne District Court, following
which they were automatically sentenced to death, was unfair. They argue
inter alia that the police daily-record book which contained entries about
the "real" authors of the crime was lost during the trial; that some
testimonies of witnesses were not taken into account while a police
officer's contradictory testimony, as well as other testimonies with
significant discrepancies, were used against the accused; that the trial
judge did not direct the jury how to approach these issues, in particular
the reliability of evidentiary testimonies; that the officer-in-charge of
the investigation, who was related to the deceased, had a conflict of
interest so that, according to the authors, his findings were partial; and
that the guilty verdict was reached even after the appellate judges
allegedly commented that the case was "a fabrication".
FAILURE OF STATE PARTY TO COOPERATE
4. On 22 April 1999, 18 December 2000 and 24 July 2001, the State party was
requested to submit to the Committee information on the admissibility and
merits of the communication. The Committee notes that this information has
not been received. The Committee regrets the State party's failure to
provide any information with regard to the admissibility or the substance of
the authors' claims. It recalls that it is implicit in article 4, paragraph
2, of the Optional Protocol that States parties examine in good faith all
the allegations brought against them, and that they make available to the
Committee all information at their disposal. In the absence of a reply from
the State party, due weight must be given to the authors' allegations, to
the extent that they have been properly substantiated.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
5.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with article 93 of its rules of
procedure, decide whether or not it is admissible under the Optional
Protocol to the Covenant.
5.2 The Committee has ascertained that the same matter is not being examined
under another procedure of international investigation or settlement
(article 5, paragraph 2(a), of the Optional Protocol).
5.3 On the issue of exhaustion of domestic remedies, the Committee notes
that the alleged victims appealed their convictions to the Court of Appeal,
the court of final appeal in the State party, although the outcome of the
appeal is not apparent from the material before the Committee. In the
absence of arguments from the State party to the effect that domestic
remedies had not in fact been exhausted, it follows that the Committee is
not precluded from article 5, paragraph 2(b), of the Optional Protocol from
consideration of the communication.
5.4 As to the issues of unfair trial raised by the authors, the Committee
notes that this part of the authors' allegations relate to the evaluation of
evidence and to the instructions given by the judge to the jury. The
Committee recalls its jurisprudence and reiterates that it is generally for
the courts of States parties to the Covenant to evaluate facts and evidence
in a particular case. [FN2] Similarly, it is not for the Committee to review
specific instructions to the jury by the trial judge, unless it can be
ascertained that the instructions to the jury were clearly arbitrary or
amounted to a denial of justice. [FN3] On the material before it, the
Committee cannot establish that the trial judge's instructions or the
conduct of the trial suffered from such deficiencies as to raise issues
under the provisions of the Covenant. Accordingly, this part of the
communication is insufficiently substantiated, for purposes of
admissibility, and is inadmissible under article 2 of the Optional Protocol.
---------------------------------------------------------------------------------------------------------------------
[FN2] See Errol Simms v. Jamaica Case No. 541/1993, Decision adopted on 3
April 1995; Lyndon Marriott v. Jamaica Case No. 519/1992,Views adopted on 27
October 1995, at para 6.3; and Catalina Marín Contreras v. Spain Case No.
1099/2002 Decision adopted on 17 March 2005.
[FN3] See Lloyd Reece v. Jamaica Case No. 796/1998,Views adopted on 14 July
2003, at para. 7.3.
---------------------------------------------------------------------------------------------------------------------
5.5 The Committee considers, however, that the issue of the mandatory
imposition of the death sentence on Messrs. Hafeez Hussain and Vivakanand
Singh raises sufficiently substantiated issues under article 6 of the
Covenant and proceeds to examine this matter on the merits.
CONSIDERATION OF THE MERITS
6.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided under article 5, paragraph 1, of the Optional Protocol.
6.2 The Committee notes that, with respect to Messrs. Hafeez Hussain and
Vivakanand Singh, the death sentence was passed by the trial court
automatically, once the jury rendered its verdict that those accused were
guilty of murder. In doing so, the trial court applied the provisions of
article 101 of the Laws of Guyana: Criminal Law (Offences), which provides
that "Everyone who commits murder shall be guilty of felony and liable to
suffer death as a felon." Article 101 of the Criminal Law therefore was
applied automatically without regard being able to be paid to the
defendant's personal circumstances or the circumstances of the particular
offence or facts and evidence of each individual case. The Committee refers
to its jurisprudence that the automatic and mandatory imposition of the
death penalty constitutes an arbitrary deprivation of life, in violation of
article 6, paragraph 1, of the Covenant, in circumstances where the death
penalty is imposed without regard being able to be paid to the defendant's
personal circumstances or the circumstances of the particular offence. [FN4]
It follows that the automatic imposition of the death penalty in the
authors' cases violated their rights under article 6, paragraph 1, of the
Covenant.
---------------------------------------------------------------------------------------------------------------------
[FN4] See Thompson v. St. Vincent & The Grenadines (Case No. 806/1998),
Views adopted on 18 October 2000; and Kennedy v. Trinidad & Tobago (Case No.
845/1998), Views adopted on 26 March 2002; Carpo et al. v. Philippines Case
No. 1077/2002, Views adopted on 28 March 2003; Ramil Rayos v. Philippines
Case No. 1167/2003, Views adopted on 27 July 2004.
---------------------------------------------------------------------------------------------------------------------
6.3 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 reveal violations by the
State party of article 6, paragraph 1 of the Covenant.
7. In accordance with article 2, paragraph 3(a), of the Covenant, the State
party is under an obligation to provide Messrs. Hafeez Hussain and
Vivakanand Singh with an effective remedy, including commutation of their
death sentence.
8. 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. 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 90 days, information about any 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.
Guyana denounced the Optional Protocol on 5 January 1999 and re-acceded to
it on the same date with a reservation related to the competence of the
Committee to examine death penalty cases. The reservation became effective
on 5 April 1999. |
|
