On May 6, 1999, the Inter- American Commission on Human Rights
(“the Commission”) received a petition from Lovell, White, Durrant, a
firm of Solicitors in London, United Kingdom (“the Petitioners”)
against the Government of Trinidad and Tobago (“Trinidad and Tobago”
or “the State”). The
petition was presented on behalf of Mr. Winston Caesar, who is
incarcerated at Carrera Convict Prison, Port of Spain, Trinidad and
Tobago. The petition states
that on January 10, 1992, Mr. Caesar was convicted of attempted rape at
the Port of Spain Assizes, Trinidad and Tobago.
He was sentenced to life imprisonment and fifteen strokes of the
cat o’nine tails, with a recommendation that he serve at least 20 years
including hard labour.
2. The petition alleged that the State is responsible for violations of Mr. Caesar’s rights under Articles 2, 5, 8 and 25 of the American Convention on Human Rights (the “American Convention” or the “Convention”). It stated in particular that the sentence of 15 strokes of the cat o’nine tails to which the victim was subjected and the conditions of his incarceration both represent breaches of Article 5 of the Convention, that Mr. Caesar’s inadequate representation at trial and the delay in bringing him to trial and in determining his appeal are violations of Article 8 of the Convention, and that the lack of effective recourse to a court or tribunal for protection of Mr. Caesar’s right to be tried without undue delay represents a breach of Articles 2 and 25 of the Convention.
As of the date of this report, the Commission had not received a
response from the State to Mr. Caesar’s petition.
As set forth in this Report, having examined the contentions of the
parties on the question of admissibility, and without prejudging the
merits of the matter, the Commission has decided to admit the claims in
the present petition pertaining to Articles 2, 5, 8 and 25 of the
Convention and continue with the analysis of the merits of the case.
PROCEEDINGS BEFORE THE COMMISSION
Following receipt of the Petitioner’s petition, on May 13, 1999
the Commission transmitted the pertinent parts of the petition to the
State. The Commission
requested the State’s observations on the petition within 90 days as
established by the Commission’s prior Regulations.
Also by note of the same date, the Commission informed the Petitioners
that the pertinent parts of their petition had been transmitted to the
State and that they would be advised of any reply that the State might
In a communication dated November 22, 1999, the Petitioners
submitted additional information regarding Mr. Caesar’s conditions of
detention. The Commission
transmitted the pertinent parts of that communication to the State in a
communication dated November 29, 1999, requesting that information
relevant to the case be provided within 30 days.
By communication of December 6, 1999, the Government acknowledged
receipt of the Commission’s communication dated November 29, 1999.
In a note dated July 11, 2000, the Commission reiterated to the
State its previous request for information relevant to the case within 30
days of the Commission’s communication.
As of the date of the present report, the Commission has not
received any information or observations from the State concerning Mr.
III. POSITIONS OF THE PARTIES
Position of the Petitioners
8. In relation to the admissibility of their complaint, the Petitioners claim that Mr. Caesar has exhausted his domestic remedies in Trinidad and Tobago, as required under Article 46(1) of the Convention and Article 31(1) of the Commission’s Rules of Procedure. The Petitioners state that Mr. Caesar applied for leave to appeal against his conviction and sentence to the Court of Appeal of Trinidad and Tobago and his application was refused on February 28, 1996. Counsel in the United Kingdom was then instructed on the merits of an appeal to the Judicial Committee of the Privy Council, who subsequently advised Mr. Caesar on November 9, 1998 that an appeal to the Privy Council was unlikely to succeed and that his case did not merit the provision by Counsel of the certificate necessary to apply for Special Leave to Appeal to the Judicial Committee of the Privy Council as a Poor Person. The Petitioners argue that Mr. Caesar has now exhausted all effective domestic remedies available to him.
Furthermore, the Petitioners submit that due to lack of funding and
the fact that legal aid is not available for Constitutional Motions in
Trinidad and Tobago, Mr. Caesar is unable to pursue a Constitutional
Motion before domestic courts for the protection of his fundamental
rights. It is submitted that
without expert legal representation in Trinidad, Mr. Caesar would not have
a realistic prospect of success in such a motion due to the complex nature
of the provisions of the Trinidadian constitution.
In respect of the timeliness of the petition, the Petitioners argue
that Mr. Caesar received legal advice from Counsel and from his solicitors
in the United Kingdom that his case did not merit the necessary
Counsel’s certificate to apply for Special Leave to Appeal to the
Judicial Committee of the Privy Council as a Poor Person.
He was informed of Counsel’s opinion by a letter from his
solicitors dated November 9, 1998. The Petitioners submit therefore that "final
judgment" in this case should be considered to have been delivered to
Mr. Caesar no earlier than November 9, 1998 and that, as his petition was
lodged with the Commission on May 9, 1999, Mr. Caesar has complied with
the time limit specified for lodging petitions in Article 46(1)(b) of the
Convention and Article 32(1) of the Commission’s Rules of Procedure.
Also in relation to the admissibility of their complaint, the
Petitioners contend that the matters complained of in Mr. Caesar’s
petition have not previously been submitted for examination by any other
procedure of international investigation or settlement.
With respect to the merits of their complaints against the State,
the Petitioners claim the following:
The sentence of flogging with 15 strokes of the cat o’nine tails to
which the victim was subjected on February 5, 1998 was a violation of
Article 5(1) and 5(2) of the Convention.
In support of this claim, the Petitioners rely in part on the case
of Tyrer v United Kingdom
in which the European Court of Human Rights concluded that a sentence
of three strokes of the “birch” passed on a 15 year old boy
constituted “cruel, inhuman or degrading treatment.”
The victim’s conditions of detention amount to a breach of Articles
5(1), 5(2) and 5(6) of the Convention.
In particular, the Petitioners claim that Mr. Caesar sleeps on a
concrete floor in a cell of dimensions 8 feet x 6 feet with a ventilation
shaft of 2 feet x 1 foot. His
toiletry, food and clothing allowances are limited. Since his incarceration, Mr. Caesar has contracted
tuberculosis and suffers from chronic hemorrhoids. The Petitioners also indicate that they are not aware of any
attempts by the State to reform Mr. Caesar or to readapt him socially.
The delay of more than 8 years in bringing Mr. Caesar to trial and more
than 2 years in determining his application for leave to appeal represents
a breach of his right to a hearing within a reasonable time under Article
8(1) of the Convention.
The lack of an effective method available to the victim in Trinidad and
Tobago to complain of the undue delay in bringing him to trial contravenes
Articles 2 and 25(1) of the Convention.
Position of the State
13. As indicated above, by communication dated December 6, 1999 the State acknowledged receipt of the Commission’s note of November 29, 1999. Apart from this communication, however, the Commission has not received any information or observations from the State respecting Mr. Caesar’s petition.
of the Commission
The Republic of Trinidad and Tobago became a party to the American
Convention on Human Rights when it deposited its instrument of
ratification of that treaty on May 28, 1991.
Trinidad and Tobago subsequently denounced the American Convention
by notice given one year in advance on May 26, 1998 in accordance with
Article 78 of the American Convention on Human Rights, which provides as
The States Parties may denounce this Convention at the expiration
of a five-year period from the date of its entry into force and by means
of notice given one year in advance. Notice of
denunciation shall be addressed to the Secretary General of the
Organization, who shall inform the other States Parties.
By the plain terms of Article 78(2), states parties to the American
Convention have agreed that a denunciation taken by any of them will not
release the denouncing state from its obligations under the Convention
with respect to acts taken by that state prior to the effective date of
the denunciation that may constitute a violation of those obligations.
A state party’s obligations under the Convention encompass not
only those provisions of the Convention relating to the substantive rights
and freedoms guaranteed thereunder. They
also encompass provisions relating to the supervisory mechanisms under the
Convention, including those under Chapter VII of the Convention relating
to the jurisdiction, functions and powers of the Inter-American Commission
on Human Rights.
Notwithstanding Trinidad and Tobago’s denunciation of the Convention,
therefore, the Commission will retain jurisdiction over complaints of
violations of the Convention by Trinidad and Tobago in respect of acts
taken by that State prior to May 26, 1999.
Consistent with established jurisprudence,
this includes acts taken by the State prior to May 26, 1999, even if the
effects of those acts continue or are not manifested until after that
In respect of acts taken by the State wholly after May 26, 1999,
the State remains bound by the American Declaration of the Rights and
Duties of Man and the Commission’s authority to supervise the State’s
compliance with that instrument, having deposited its instrument of
ratification of the OAS Charter on March 17, 1967 and thereby becoming an
OAS member state.
In the present case, the Petitioners claim that the State has
violated Mr. Caesar’s rights under the American Convention.
The claims in the petition relate to acts alleged to have been
taken by the State prior to the effective date of its denunciation.
The alleged victim of the alleged violations is a natural person,
and his complaints relate to events alleged to have occurred in the
territory of Trinidad and Tobago. The
Commission is therefore competent to examine the alleged violations of the
American Convention on Human Rights presented in this petition.
According to the Petitioners, the matters complained of in this
petition have not previously been submitted for examination by any other
international organization. The State has not provided any observations on the issue of
duplication of procedures. The
Commission therefore finds that the petition is not inadmissible under
Article 33(1) of its Rules of Procedure.
Exhaustion of Domestic Remedies
Article 46(1)(a) of the Convention and Article 31(1) of the
Commission’s Rules of Procedure specify that, in order for a case to be
admitted, remedies under domestic law must have been pursued and exhausted
in accordance with generally accepted principles of international law.
Article 46(2) of the Convention and Article 31(2) of the
Commission’s Rules of Procedure provide, however, that the exhaustion of
domestic remedies requirement shall not apply when the domestic
legislation of the state concerned does not afford due process of law for
the protection of the right or rights that have allegedly been violated,
when the party alleging violation of his rights has been denied access to
the remedies under domestic law or has been prevented from exhausting
them, or when there has been unwarranted delay in rendering a final
judgment under domestic remedies. Moreover,
the jurisprudence of the inter-American system makes clear that the rule
which requires the prior exhaustion of domestic remedies is designed for
the benefit of the State, because the rule seeks to excuse the State from
having to respond to charges before an international body for acts imputed
to it before it has had an opportunity to remedy them by internal means.
According to the Inter-American Court, the requirement is thus
considered a means of defense and, as such, waivable, even tacitly.
Further, a waiver, once effected, is irrevocable. In the face of such a
waiver, the Commission is not obliged to consider any potential bars to
the admissibility of a petitioner’s claims that might have properly been
raised by a state relating to the exhaustion of domestic remedies.
In the present case, the State has failed to provide any
observations or information respecting the admissibility of Mr. Caesar’s
claims. Nevertheless, based
upon the extensive submissions provided by the Petitioners, it is clear to
the Commission that the State’s legislation fails to afford due process
for the protection of the rights alleged to have been violated in the
Petitioners’ petition or that Mr. Caesar has been hindered from
exhausting such remedies. The
record before the Commission indicates that Mr. Caesar was precluded from
pursuing his petition for Special Leave to Appeal to the Judicial
Committee of the Privy Council by reason of the advice by Counsel that his
case was unlikely to succeed and therefore did not merit the certificate
necessary to seek leave to appeal. The
State has not disputed these facts or otherwise demonstrated that remedies
for the matters complained of in the Petitioners’ petition are available
in fact or in law or have not been exhausted.
Based upon these circumstances, the Commission finds that the
State’s legislation fails to afford due process for the protection of
the rights alleged to have been violated in the Petitioners’ petition or
that Mr. Caesar has been hindered from exhausting such remedies.
Accordingly, the Commission concludes that that the exhaustion of
domestic remedies requirement does not apply in the circumstances of this
case, and therefore that the Petitioners’ claims are not barred under
Article 46(1)(a) of the Convention or Article 31(1) of its Rules of
In accordance with Article 46(1)(b) of the Convention and Article
32(1) of the Commission’s Rules of Procedure, the Commission shall
consider those petitions that are lodged within a period of six months
from the date on which the complaining party was notified of the final
judgment at the domestic level. Article
46(2)(a) of the Convention and Article 32(2) of the Commission’s Rules
of Procedure provide, however, that in cases in which an exception to the
exhaustion of domestic remedies applies, the petition shall be presented
within a reasonable time, as determined by the Commission, considering the
date on which the alleged violation of rights occurred and the
circumstances of each case.
As noted above, the Commission has concluded that the Petitioners
are exempted from the exhaustion of domestic remedies requirement in the
circumstances of this case. As
a consequence, the six-month period prescribed under the Convention and
Rules is likewise inapplicable to the Petitioners’ complaint.
Further, after considering the circumstances of Mr. Caesar’s
case, including in particular the fact that Mr. Caesar was not advised
until November 9, 1998 of Counsel’s opinion on the merits in his case of
a petition for Special Leave to Appeal to the Judicial Committee of the
Privy Council, the Commission considers that his petition was lodged with
the Commission within a reasonable time in compliance with Article 32(2)
of the Commission’s Rules of Procedure.
Accordingly, the Commission finds no bar to the admissibility of
the petition under Article 46(1)(b) of the Convention and Article 32 of
the Commission’s Rules.
Articles 46(b) and 47(c) of the Convention and Articles 34(a) and
(b) of the Commission’s Rules of Procedure require the Commission to
consider a petition to be inadmissible if the petition does not state
facts that tend to establish a violation of the rights guaranteed by the
Convention or other applicable instruments, or if the statements of the
petitioner or of the state indicate that the petition is manifestly
groundless or obviously out of order.
The Petitioners allege that the State is responsible for violations
of Mr. Caesar’s rights under Articles 2, 5, 8 and 25 of the Convention
the particulars of which are summarized in Part III.A above.
The State has failed to provide any observations or information on
the violations alleged by Mr. Caesar.
Based upon the information provided by the Petitioners, and without
prejudging the merits of the matter, the Commission finds that the
Petitioners’ petition contains factual allegations, that, if proved,
tend to establish violations of the rights guaranteed by the Convention,
and that the statements of the Petitioners are not on the information
provided manifestly groundless or obviously out of order.
Consequently, the claims in the petition are not barred as
inadmissible under Article 47(b) and 47(c) of the Convention and Article
34(a) and (b) of the Commission’s Rules of Procedure.
The Commission concludes that it has the competence to examine this
case, and that the petition is admissible in accordance with Articles 46
and 47 of the Convention and Articles 31 to 34 of the Commission’s Rules
On the basis of the findings of fact and law set forth above, and
without prejudging the merits of the matter,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
To declare admissible the Petitioners’ claims as to the alleged
violations of Articles 2, 5, 8 and 25 of the Convention.
To give notice of this decision to the State and to the
3. To continue with the analysis of the merits of the case.
To publish this Report and include it in the Annual Report to the
OAS General Assembly.
and signed in the city of Washington, D.C., the 10th day of the
month of October, 2001. (Signed):
Dean Claudio Grossman, President; Dr. Juan Méndez, First Vice-President;
Lic. Marta Altolaguirre, Second Vice-President; Prof. Hélio Bicudo, Prof.
Robert K. Goldman, Dr. Peter Laurie, and Dr. Julio Prado Vallejo,
its 109th special session in December 2000, the Commission
approved the Rules of Procedure of the Inter-American Commission on
Human Rights, which replaced the Commission’s prior Regulations of
April 8, 1980. Pursuant
to Article 78 of the Commission’s Rules of Procedure, the Rules
entered into force on May 1, 2001.
Eur. Court H.R., Tyrer v. United Kingdom, Judgment of 25 April 1978,
Series A, No. 26.
Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/I.4
rev.8 (22 May 2001), p. 48.
See similarly I/A Court
H.R., Baruch Ivcher Bronstein v. Peru, Jurisdiction, Judgment (24
September 1999), para. 37 (noting that the obligations of States
Parties to the American Convention on Human Rights to guarantee
compliance with its provisions applies both to the substantive and
procedural norms under the treaty).
According to the
jurisprudence of the Inter-American Court and Commission and that of
other international human rights tribunals, human rights instruments
may properly be applied in respect of acts that arose prior to the
ratification of those instruments but which are continuing in nature
and whose effects persist after the instruments’ entry into force. See
e.g. I/A Court H.R., Blake Case, Preliminary Objections, Judgment
of July 2, 1996, Series C No. 27, paras. 33-34 and 46; IACHR, Joăo
Canuto de Oliveira v. Brazil, Report Nş
24/98, Annual Report of the IACHR 1997, paras. 13-18.
See similarly Eur. Court H.R., Papamichalopoulos et al. v. Greece,
June 24, 1993, Series A Nş
260-B, pp. 69-70, 46.
Statute of the IACHR, Article 20 (providing in respect of those OAS
member states that are not parties to the American Convention on Human
Rights that the Commission may examine communications submitted to it
and any other available information, to address the government of such
states for information deemed pertinent by the Commission, and to make
recommendations to such states, when it finds this appropriate, in
order to bring about more effective observance of fundamental human
rights). See also I/A Court
H.R., Advisory Opinion OC-10/89 Interpretation of the American
Declaration of the Rights and Duties of Man Within the Framework of
Article 64 of the American Convention on Human Rights, July 14, 1989,
Nş 10 (1989), paras. 35-45;
I/A Comm. H.R., James Terry Roach and Jay Pinkerton v. United States,
Case 9647, Res. 3/87, 22 September 1987, Annual Report 1986-87, paras.
I/A Court H.R., Loayza
Tamayo Case, Preliminary Objections, Judgment of January 31, 1996,
Series C No. 25, para. 40.