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1.1 The author of the
communication, dated 30 May 1997, is Errol Pryce, a Jamaican citizen born on
28 September 1971. He claims to be a victim of violations by Jamaica of
articles 7 and 10, paragraph 1, of the International Covenant of Civil and
Political Rights. He is represented by counsel.
1.2 Both the Covenant and Optional Protocol entered into force for the State
party on 23 March 1976. The State party denounced the Optional Protocol on
23 October 1997, with effect from 23 January 1998.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 The prosecution alleged that the author lived with his girlfriend in the
same premises. On the night of 24 June 1992, the author quarreled with his
girlfriend. He approached her armed with an ice-pick. The girl called out to
her mother, who came and offered her to come to her house, upon which the
author attacked the mother. The injuries inflicted on her by the author left
her crippled.
2.2 On 8 August 1994, the author was tried and convicted by the Home Circuit
Court in Kingston of wounding with intent. He was sentenced to 4 years' hard
labour and to 6 strokes of the tamarind switch. The author applied for
special leave to appeal in the Court of Appeal, arguing that the sentence
was manifestly excessive in the circumstances of the case. The court,
considering the high incidence of violent crime in the society, particularly
against women, refused application for leave to appeal. The author states
that he has no financial means and is not entitled to any legal aid to
pursue a constitutional motion.
2.3 As set out in an affidavit provided by the author, he was released on 1
March 1997, after appropriate remission for good behavior.
2.4 The tamarind switch punishment was carried out on 28 February 1997, the
day before his release. As the author states in his affidavit, he was
blindfolded and ordered to drop his pants and underpants. His feet were
lifted and placed in slots in the floor in front of a barrel that was lying
on its side. His arms were drawn forward so that his body was lying across
the barrel. A warder placed the author's penis into a slot cut out in the
side of the barrel. His wrists and ankles were strapped to the platform. He
states that a doctor and about 25 prison warders were present during the
whipping. According to the author, the doctor did not examine him
afterwards.
THE COMPLAINT
3.1 The author claims to be a victim of a violation of articles 7 and 10,
paragraph 1, of the International Covenant on Civil and Political Rights. He
claims that the tamarind switch punishment amounts to cruel, inhuman and
degrading punishment contrary to articles 7 and 10, paragraph 1, of the
Covenant. In the absence of regulations more comprehensive than those set
out in the Approval and Directions (under Section 4 of the Crime (Prevention
of) Act), the procedure is said to be largely at the discretion of the
implementing prison authorities.
3.2 Alternatively, the author claims that the use of a tamarind switch on
the buttocks, as a form of punishment, is inherently cruel, inhuman and
degrading. In this respect he cites the decision of the Zimbabwe Supreme
Court in S v Ncube and Others, [FN1] in which the Court observed that "The
raison d'etre underlying [the prohibition on inhuman and degrading
punishment] is nothing less than the dignity of man ...."
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[FN1] S v Ncube; S v Tshuma; S v Ndhlovu, 1978 (2) ZLR 246 (SC); 1988 (2) SA
702.
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3.3 The author notes that the trial judge emphasized that the punishment and
whipping was designed to "prevent crime", an evaluation confirmed by the
Court of Appeal. In this respect the author claims that there is no evidence
that whipping acts as a deterrent to serious crime either generally or
particularly in Jamaica. He cites the judgment of the European Court of
Human Rights in Tyrer v United Kingdom, [FN2] where the Court observed that
"the prohibition [against inhuman and degrading punishment or treatment]
contained in article 3 of the European Convention on Human Rights is
absolute and, under article 15 (2), the Contracting States may not derogate
from article 3 even in the event of war or other public emergency
threatening the life of the nation. Otherwise in the Court's view, no local
requirement relating to maintenance of law and order would entitle any of
the States... to make use of a punishment contrary to article 3".
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[FN2] Tyrer v. United Kingdom, Application No 5856/72.
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3.4 Further, it is stated that under Regulation 9 of the Flogging Regulation
Act 1903, "in no case shall sentence of flogging be passed upon a female..."
In this respect the author contends that if the deterrence of serious crime
were the primary purpose of the provision, "such exception would not arise".
Rather, the exception serves to emphasize that the punishment is
intrinsically inhuman and /or degrading.
3.5 The author argues that if whipping is not an intrinsically cruel,
inhuman and degrading treatment or punishment, the particular circumstances
of whipping in Jamaica are contrary to articles 7 and 10 (1) of the
Covenant. He notes that the Jamaican Regulations make no provision for the
date on which the sentence must be carried out. In this respect, he refers
to the decision of the Judicial Committee of the Privy Council in London in
Pratt & Morgan v Attorney General of Jamaica in which the Committee held
that the delay in carrying out the death sentence against the author
amounted to inhuman and degrading punishment or treatment. In the context of
whipping the same principle must apply. In the author's case it is submitted
that the delay in carrying out of the whipping sentence until the day before
his release represented inhuman and degrading punishment or treatment. The
author further submits that the failure to communicate to the prisoner the
procedure and the timetable to be followed in carrying out the punishment
aggravated the effect of the delay.
3.6 It is further submitted that the manner in which the whipping was
carried out and the numbers and identity of witnesses to the punishment, far
exceeding what was necessary in the interests of security, was humiliating
in itself.
3.7 Finally, It is submitted that the sentence is in practice only
pronounced for serious crimes of violence in addition to long terms of
imprisonment or hard labour; and thus cannot serve as a deterrent to the
individual prisoner. It is claimed that evidence suggests that such
punishment does not serve the purpose of deterrence.
3.8 The author submits that his complaint as set out above has not been
submitted to any other procedure of international investigation or
settlement.
THE STATE PARTY'S SUBMISSION ON THE ADMISSIBILITY AND MERITS OF THE
COMMUNICATION
4.1 In spite of reminders addressed to it on 5 October 2000 and 11 October
2001, the State party has made no submission on the admissibility or merits
of the case.
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 the Rule 87 of its Rules of
Procedure, decide whether or not the case is admissible under the Optional
Protocol to the Covenant.
5.2 The Committee has ascertained, as required under article 5, paragraph
2(a), of the Optional Protocol, that the same matter is not being examined
under another procedure of international investigation or settlement.
5.3 The Committee notes that the complaint was submitted prior to the
denunciation of the Optional Protocol by Jamaica, 23 October 1997, and that
no obstacles to admissibility arise in this respect.
5.4 Concerning the author's allegations that the punishment of whipping with
the tamarind switch constitutes cruel, inhuman and degrading punishment, the
Committee has noted his contention that, for practical purposes, there was
no effective remedy available to him, and that, even if he had a remedy
available in theory, it would not be available to him in practice, because
of lack of funds and the unavailability of legal aid in constitutional
motions. The Committee notes that the State party has not contested the
admissibility of the communication. It concludes that there are no obstacles
to the admissibility of the communication and proceeds to examine the
merits, in the light of the information made available to it by the parties,
as required by article 5, paragraph 1, of the Optional Protocol.
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. It notes
with concern that the State party has not provided any information
clarifying the matters raised in the communication. It recalls that it is
implicit in article 4, paragraph 2, of the Optional Protocol that a State
party should examine in good faith all the allegations brought against it,
and provide the Committee with all the information at its disposal. Given
the failure of the State party to cooperate with the Committee on the issues
raised, due weight must be given to the authors' allegations, to the extent
that they have been substantiated.
6.2 The Committee notes that the author has made specific and detailed
allegations concerning his punishment. The State party has not responded to
these allegations. The Committee notes that the author was sentenced to 6
strokes of the tamarind switch and recalls its jurisprudence, [FN3] that,
irrespective of the nature of the crime that is to be punished, however
brutal it may be, corporal punishment constitutes cruel, inhuman and
degrading treatment or punishment contrary to article 7 of the Covenant. The
Committee finds that the imposition of a sentence of whipping with the
tamarind switch on the author constituted a violation of the author's rights
under article 7, as did the manner in which the sentenced was executed.
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[FN3] See Malcolm Higginson v. Jamaica, Communication No 792/1998, where the
author was subjected to receive 6 strokes of the tamarind switch, and see
also George Osbourne v. Jamaica, Communication No 759/1997, where the author
was sentenced to 15 years of imprisonment with hard labour and was subjected
to receive 10 strokes of the tamarind switch.
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6.3 While the author has made an allegation under article 10, paragraph 1,
in respect of his treatment the Committee need not address this claim in the
light of its finding under article 7 in paragraph 6.2 above.
7. 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 a violation of
article 7 of the Covenant.
8. Pursuant to article 2, paragraph 3(a), of the Covenant, the Committee
considers that the author is entitled to an appropriate remedy including
compensation. The State party is under an obligation to ensure that similar
violations do not occur in the future and to repeal domestic legislative
provisions that allow for corporal punishment.
9. 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. This case was submitted for
consideration before Jamaica's denunciation of the Optional Protocol became
effective on 23 January 1998; in accordance with article 12(2) of the
Optional Protocol the communication is subject to the continued application
of the Optional Protocol. Pursuant to article 2 of the Covenant, the State
party has undertaken to ensure to all individuals within its territory or
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 by the Committee. The Committee wishes to receive from the State
party, within 90 days, information about the measures taken to give effect
to the Committee's Views. The State party is also requested to publish the
Committee's Views.
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[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
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