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1. The author of the
communication is Ms. Rookmin Mulai. She submits the communication on behalf
of her two brothers Bharatraj and Lallman Mulai, both Guyanese citizens,
currently awaiting execution in Georgetown Prison in Guyana. She claims that
her brothers are victims of human rights violations by Guyana. [FN1]
Although she does not invoke any specific articles of the Covenant, her
communication appears to raise issues under articles 6, paragraph 2, and 14
of the Covenant. After the submission of the communication, the author has
appointed counsel who, however, has not been in a position to make any
substantive submissions in the absence of any response from the State party.
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[FN1] The Optional Protocol to the Covenant entered into force for the State
party on accession on 10 August 1993. On 5 January 1999, the Government of
Guyana notified the Secretary-General that it had decided to denounce the
said Optional Protocol with effect from 5 April 1999, that is, subsequent to
submission of the communication. On that same date, the Government of Guyana
re-acceded to the Optional Protocol with the following reservation: "Guyana
re-accedes to the Optional Protocol to the International Covenant on Civil
and Political Rights with a Reservation to article 6 thereof with the result
that the Human Rights Committee shall not be competent to receive and
consider communications from any persons who is under sentence of death for
the offences of murder and treason in respect of any matter relating to his
prosecution, detention, trial, conviction, sentence or execution of the
death sentence and any matter connected therewith. Accepting the principle
that States cannot generally use the Optional Protocol as a vehicle to enter
reservations to the International Covenant on Civil and Political Rights
itself, the Government of Guyana stresses that its Reservation to the
Optional Protocol in no way detracts from its obligations and engagements
under the Covenant, including its undertaking to respect and ensure to all
individuals within the territory of Guyana and subject to its jurisdiction
the rights recognised in the Covenant (in so far as not already reserved
against) as set out in article 2 thereof, as well as its undertaking to
report to the Human Rights Committee under the monitoring mechanism
established by article 40 thereof."
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1.2 On 9 April 1998, the Special Rapporteur on New Communication issued a
request under Rule 86 of the Committee's Rules of Procedure, that the State
party does not carry out the death sentence against the authors while their
communication is under consideration by the Committee.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 On 15 December 1992, Bharatraj and Lallman Mulai were charged with the
murder of one Doodnauth Seeram that occurred between 29 and 31 August 1992.
They were found guilty as charged and sentenced to death on 6 July 1994. The
Court of Appeal set aside the death sentence and ordered a retrial on 10
January 1995. Upon conclusion of the re-trial, Bharatraj and Lallman Mulai
were again convicted and sentenced to death on 1 March 1996. On 29 December
1997, their sentence was confirmed on appeal.
2.2 From the notes of evidence of the re-trial, it appears that the case for
the prosecution was that Bharatraj and Lallman Mulai had an argument with
one Mr. Seeram over cows grazing on the latter's land. In the course of the
argument, Bharatraj and Lallman Mulai repeatedly chopped Seeram with a
cutlass and a weapon similar to a spear. After Mr. Seeram fell to the
ground, they beat him with sticks. On 1 September 1992, Mr. Seeram's corpse
was found by his son, drowned in a small river in the proximity of Mr.
Seeram's property. It disclosed injuries to the head, the right hand cut off
above the wrist and a rope tied around the neck to keep the body submerged
in water.
2.3 Evidence against Bharatraj and Lallman Mulai was given by one Nazim
Baksh, alleged eyewitness to the incidents. The court also heard Mr.
Seeram's son, who had found the body, and, among other, the investigating
officer of the police and the doctor, who examined the victim's body on 29
October 1992.
2.4 In a statement from the dock, Bharatraj and Lallman Mulai claimed that
they were innocent and had not been present at the scene on the day in
question. They stated that they had been on good terms with Mr. Seeram,
while they had not been "on speaking terms" with Mr. Baksh.
2.5 By letter of 19 May 2003, counsel advised that Bharatraj and Lallman
Mulai remain on death row.
THE COMPLAINT
3.1 The author claims that her brothers are innocent and that the trial
against them was unfair. According to her, unknown persons tried to bribe
the foreman of the jury. Two persons visited the foreman on 23 February 1996
at his house and offered to pay him an unspecified amount of money if he
influenced the jury in favour of Bharatraj and Lallman Mulai. The foreman
reported the matter to the prosecutor and the judge, but it was never
disclosed to the defence. Unlike what had happened in other cases, the trial
was not aborted due to the incident. [FN2] Furthermore, Mr. Baksh claimed
during his testimony to have been approached by members of the Mulai family.
The author argues that, as a result, the foreman and the jury were biased
against her brothers.
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[FN2] The file includes a copy of the Appeal Court's judgement where the
incident is addressed as having been raised upon appeal as a matter of
unfair trial. The Court of Appeal dismissed the appeal on the grounds that
the integrity of the jury foreman had not been tainted.
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3.2 The author claims that Mr. Baksh could not be considered a credible
witness. She states that Mr. Baksh testified at the re-trial that he saw
Bharatraj and Lallman Mulai at the scene attacking Mr. Seeram, while at the
initial trial he had testified that he could not see the scene, because it
was too dark. Furthermore, he testified that Bharatraj and Lallman Mulai had
chopped Mr. Seeram several times with a cutlass, while the investigating
officer stated that the injuries to the body had been caused by a blunt
instrument. Finally, Mr. Baksh testified that Bharatraj and Lallman Mulai
had beaten Mr. Seeram for several minutes, but the doctor could not find any
broken bones on the corpse, which would have been a typical injury caused by
such beatings. Finally, the doctor estimated that Mr. Seeram's actual cause
of death was drowning.
3.3 The author also contends that it would have been typical for the victim
to try to fend off the beatings with hands and feet, but that Mr. Seeram's
corpse did not show any injuries except the missing right hand. She notes
that Mr. Bharatraj Mulai, who was identified by Mr. Baksh as having chopped
Mr. Seeram with the cutlass, is right-handed. The author argues that Mr.
Seeram's left hand should be missing if he used it to avert a hit with the
cutlass by Bharatraj Mulai. The author concedes that the defence attorney
did not argue these points on trial.
3.4 Finally, it is claimed that Mr. Baksh gave two different statements to
the police. In his first statement on 8 September 1992, he stated that he
did not observe anything of the incident, while on 10 December 1992, he gave
the statement reflected above, paragraph 3.2. The statements of Mr. Baksh
and of Mr. Seeram's son were not consistent either with regard to the
existence of trees at the scene. Mr. Seeram's son had stated that there had
been many trees close to the scene of the incident.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
4. On 9 April 1998 and 30 December 1998, 14 December 2000, 13 August 2001,
and on 11 March 2003 the State party was requested to submit to the
Committee information on the merits of the communication. The Committee
notes that this information has still not been received. The Committee
regrets the State party's failure to provide any information with regard to
admissibility or the substance of the author's claims. It recalls that it is
implicit in the Optional Protocol that States parties 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 author's allegations, to
the extent that these have been properly substantiated. [FN3]
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[FN3] See J.G.A. Diergaardt et al. v Namibia, Case No. 760/1997, Views
adopted on 25 July 2000, paragraph 10.2.
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CONSIDERATION OF ADMISSIBILITY
5.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with article 87 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 for the
purposes of article 5, paragraph 2(a), of the Optional Protocol.
5.3 With regard to the author's claim that Mr. Baksh lacked credibility and
that testimony provided by the doctor and other witnesses had not been
conclusive, the Committee recalls its constant jurisprudence that it is in
general for the courts of States parties to the ICCPR, and not for the
Committee, to evaluate the facts in a particular case. The information
before the Committee and the arguments advanced by the author do not show
that the Courts' evaluation of the facts and their interpretation of the law
were manifestly arbitrary or amounted to a denial of justice. Accordingly,
this part of the communication is inadmissible under article 2 of the
Optional Protocol.
5.4 The Committee declares the remaining allegations related to the incident
of jury tampering admissible insofar as they appear to raise issues under
article 14, paragraph 1, and proceeds with its examination on the merits, in
the light of all the information made available to it by the author,
pursuant to article 5, paragraph 1, of the Optional Protocol.
CONSIDERATION OF THE MERITS
6.1. The Committee notes that the independence and impartiality of a
tribunal are important aspects of the right to a fair trial within the
meaning of article 14, paragraph 1, of the Covenant. In a trial by jury, the
necessity to evaluate facts and evidence independently and impartially also
applies to the jury; it is important that all the jurors be placed in a
position in which they may assess the facts and the evidence in an objective
manner, so as to be able to return a just verdict. On the other hand, the
Committee recalls that where attempts at jury tampering come to the
knowledge of either of the parties, these alleged improprieties should have
been challenged before the court. [FN4]
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[FN4] See Willard Collins v Jamaica, Case No. 240/1987, Views adopted on 1
November 1991, paragraph 8.4.
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6.2 In the present case, the author submits that the foreman of the jury at
the re-trial informed the police and the Chief Justice, on 26 February 1996,
that someone had sought to influence him. The author claims that it was the
duty of the judge to conduct an inquiry into this matter to ascertain
whether any injustice could have been caused to Bharatraj and Lallman Mulai,
thus depriving them of a fair trial. In addition, the author complains that
the incident was not disclosed to the defence although both the judge and
the prosecution were made aware of it by the foreman of the jury, and that
unlike in some other trials the trial against the two brothers was not
aborted as a consequence of the incident. The Committee notes that although
it is not in the position to establish that the performance and the
conclusions reached by the jury and the foreman in fact reflected partiality
and bias against Bharatraj and Lallman Mulai, and although it appears from
the material before it that the Court of Appeal dealt with the issue of
possible bias, it did not address that part of the grounds of appeal that
related to the right of Bharatraj and Lallman Mulai to equality before the
courts, as enshrined in article 14, paragraph 1, of the Covenant and on the
strength of which the defence might have moved for the trial to be aborted.
Consequently, the Committee finds that there was a violation of article 14,
paragraph 1, of the Covenant.
6.3 In accordance with its consistent practice the Committee takes the view
that the imposition of a sentence of death upon conclusion of a trial in
which the provisions of the Covenant have not been respected, constitutes a
violation of article 6 of the Covenant. In the circumstances of the current
case the State party has violated the rights of Bharatraj and Lallman Mulai
under article 6 of the Covenant.
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 reveal violations of article
14, paragraph 1, and article 6 of the International Covenant on Civil and
Political Rights.
8. In accordance with article 2, paragraph 3 (a), of the Covenant, the State
party is under an obligation to provide Bharatraj and Lallman Mulai with an
effective remedy, including commutation of their death sentences. The State
party is also under an obligation to avoid similar violations in the future.
9. Bearing in mind that, by becoming a 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 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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[Done 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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