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1.1 The author of the
communication, dated 17 August 1998, is Mrs. Deolall. She submits the
communication on behalf of her husband, Mr. Deolall, currently imprisoned in
Guyana under sentence of death. [FN1] They are both Guyanese citizens. She
claims that her husband is a victim of human rights violations by Guyana.
Although she does not invoke any specific articles of the Covenant, her
communication appears to raise issues under articles 14, and 6 of the
Covenant. The alleged victim is not represented by counsel.
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[FN1] The file contains no information on the place of detention.
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1.2 In accordance with rule 86 of the Committee's Rules of Procedure, the
Committee through its Special Rapporteur for New Communication, on 7
February 2000 requested the State party not to carry out the death sentence
against Mr. Deolall, while his case is under consideration by the Committee.
There has been no reply from the State party to this request.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 Mr. Deolall was arrested on 26 October and charged with murder on 3
November 1993. On 22 November 1995, he was convicted of murder and sentenced
to death in the Georgetown Criminal Assizes Court. He appealed to the High
Court and subsequently to the Court of Appeal. The grounds of appeal to the
Court of Appeal were that (a) the trial judge had erred in not putting the
accused's defense adequately to the jury, and (b) that the trial judge had
erroneously admitted inadmissible evidence, i.e. an alleged involuntary
confession . The Court of Appeal dismissed his appeal and the Chief Justice
confirmed the death sentence on 30 January 1997. With this it is submitted
that all domestic remedies are exhausted. The author notes that Mr. Deolall
has been on death row since November 1995, and that his sentence should have
been commuted.
2.2 According to the author, Mr. Deolall was convicted on the basis of a
single piece of evidence, namely the confession, which he is alleged to have
signed after being subjected to ill-treatment during the interrogation by
police officers. Although the police record shows that Mr. Deolall had no
marks of violence on his body, at the trial it was disclosed that he had
such marks when he had been examined individually by three doctors. It
appears from the trial transcript, submitted by the author, that Mr. Deolall
was examined on 30 October 1993 and 8 November 1993. Dr. Persaud saw him on
30 October 1993, and in a medical report stated that the "examination
revealed a small bruise on the lower level of the left alliae fosse region
(lower region of the left side of the abdomen)". Dr. Maynard saw him on the
same day and had a similar finding. Dr. Joshua Deen day saw him on 8
November 1993, and stated in his medical report that Mr. Deolall had
"scratch marks on his back" and that in his view they were received between
27 October 1993 and 31 October 1993, i.e. prior to making the alleged
statement.
2.3 According to the author "Mr. Deolall's brother who was a suspect for the
same crime was shot by the police but he was never charged".
2.4 On 1 June 2004, the author provided new factual information on the
circumstances of the trial and the conditions of detention.
THE COMPLAINT
3.1 The author claims that her husband was beaten and ill-treated by police
officers during interrogations at the police station.
3.2 It is claimed that Mr. Deolall was innocent and that the trial against
him was unfair.
3.3 The author claims that her husband was forced to sign a confession after
being beaten by police officers, and that this confession was the only basis
upon which he was convicted.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
4.1 On 7 February 2000, 28 February 2001, 24 July 2001, and 8 April 2004,
and 9 August 2004, 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 still 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 author's 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 author's allegations, to the extent
that these have been properly substantiated.
4.2 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.
4.3 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.
4.4 Mr. Deolall has appealed his conviction, an appeal that was dismissed.
In the absence of arguments to the contrary, the Committee considers that
Mr. Deolall has exhausted domestic remedies. [FN2]
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[FN2] Guyana is not a member of the appeal procedure of the Privy Council,
Judicial Committee.
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4.5 The Committee notes that the communication was submitted prior to
Guyana's denunciation of the Optional Protocol on 5 January 1999 and its
re-accession to it with a reservation related to the competence of the
Committee to examine death penalty cases. It concludes therefore that its
jurisdiction is not affected by this denunciation. The Committee can find no
reasons to consider this communication inadmissible and proceeds to a
consideration of the merits.
CONSIDERATION OF THE MERITS
5.1 The author claims that Mr. Deolall was ill-treated during interrogations
by police officers and forced to sign a confession statement, a claim that
raises issues under article 14, paragraphs 1 and 3 (g) and article 6, of the
Covenant. The Committee refers to its previous jurisprudence that the
wording, in article 14, paragraph 3 (g), that no one shall "be compelled to
testify against himself or confess guilt", must be understood in terms of
the absence of any direct or indirect physical or psychological coercion
from the investigating authorities on the accused with a view to obtaining a
confession of guilt, and that it is implicit in this principle that the
prosecution prove that the confession was made without duress. [FN3] In the
current case, the Committee notes that the testimony of 3 doctors at the
trial, that Mr. Deolall displayed injuries, as outlined in paragraph 2.2
above, as well as Mr. Deolall's own statement, would prima facie support the
allegation that such ill-treatment indeed occurred during the police
interrogations, prior to his signing of the confession statement. In its
instructions to the jurors, the court clearly stated that if the jurors
found that Mr. Deolall was beaten by the police prior to giving his
confession, even though it was a slight beating, they could not attach any
weight to that statement and would need to acquit the defendant. However,
the Court did not instruct the jurors that they would need to be convinced
that the prosecution had managed to prove that the confession was voluntary.
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[FN3] Berry v. Jamaica, Case no. 330/1988, Views adopted on 4 July 1994 and
Nallaratnam Singarasa v. Sri Lanka, Case No. 1033/2001, Views adopted on 21
July 2004.
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5.2 The Committee maintains its position that it is generally not in the
position to evaluate facts and evidence presented before a domestic court.
In the current case, however, the Committee takes the view that the
instructions to the jury raise an issue under article 14 of the Covenant, as
the defendant had managed to present prima facie evidence of being
mistreated, and the Court did not alert the jury that that the prosecution
must prove that the confession was made without duress .This error
constituted a violation of Mr. Deolall's right to a fair trial as required
by the Covenant, as well as his right not to be compelled to testify against
himself or confess guilt , which violations were not remedied upon appeal.
Therefore, the Committee concludes that the State party has violated article
14, paragraphs 1, and 3 (g), of the Covenant in respect of Mr. Deolall.
5.3 The Committee recalls its jurisprudence 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, if no further appeal against
the sentence is possible, a violation of article 6 of the Covenant. [FN4] In
the present case, since the final sentence of death was passed without
having observed the requirement for a fair trial set out in article 14, it
must be concluded that the right protected by article 6 of the Covenant has
also been violated.
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[FN4] Taylor v. Jamaica, Communication no. 705/1996, Levy v. Jamaica,
719/1996.
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6. 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 articles 6, and 14, paragraphs 1, 3 (g) of the Covenant.
7. In accordance with article 2, paragraph 3(a), of the Covenant, the State
party is under an obligation to provide Mr. Deolall with an effective
remedy, including release or commutation.
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.
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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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