Report No. 137 (2009) IACHR. Petition No. 981-05 (Trinidad y Tobago)

• Petition Number: 981-05
• Report Number: 137
• Respondent State: Trinidad & Tobago
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Reshi Bissoon y Foster Serrette

REPORT Nº 137/09 PETITION 981-05 ADMISSIBILITY RESHI BISSOON and FOSTER SERRETTE TRINIDAD AND TOBAGO November 13, 2009 I. SUMMARY 1. On August 29 and June 2, 2005, the Inter-American Commission on Human Rights (the “Inter-American Commission” or the “IACHR”) received two petitions along with two requests for precautionary measures from Herbert-Smith LLP (“the petitioners”) against the Government of Trinidad and Tobago (“Trinidad & Tobago” or the “State”). The petitions were presented, respectively, on behalf of Reshi Bissoon and Foster Serrette (the “alleged victims”), two Trinidadian nationals who at that time were inmates on death row in Trinidad & Tobago’s State Prison. 2. The petitions indicate that both Messrs. Bissoon and Serrette were arrested on the charge of murder and sentenced to the mandatory death penalty by the High Court of Trinidad & Tobago. Their respective appeals against conviction and sentence to the Court of Appeal of Trinidad & Tobago were dismissed, as well as their further petitions to the Judicial Committee of the Privy Council (the “JCPC”). The petitioners further informed the IACHR that arising out of constitutional proceedings in the High Court of Trinidad & Tobago, Mr. Bissoon and Mr. Serrette’s death sentences were commuted to life imprisonment on August 15, 2008. The petitioners underscore that the late commutation of the death sentences does not alter the substance of the alleged breaches for the period Mr. Bissoon and Mr. Serrette were on death row. 3. The petitioners complain principally of three related issues: the delay in commutation of the alleged victims’ death sentences despite jurisprudence from the JCPC; violations of due process; and conditions of post and pre-trial detention. 4. The petitioners recognize that Trinidad & Tobago’s denunciation of the American Convention took effect on May 26, 1999. Notwithstanding, they contend that the IACHR is competent to consider the alleged violations of the American Convention for those facts which occurred before the effective date of Trinidad and Tobago’s denunciation. The petitioners otherwise rely on the American Declaration to ground the IACHR’s competence to consider the complaints contained in the petition. 5. As such, the petitioners allege that the State violated Mr. Bissoon and Mr. Serrette’s right to life, liberty and personal security under Article I of the American Declaration of the Rights and Duties of Man (the “American Declaration”) and Article 4 of the American Convention on Human Rights (the “American Convention”); their right to equality under Article II of the American Declaration; their right to humane treatment under Article XVIII of the American Declaration and Article 5 of the American Convention; their right to an expeditious trial under Articles XVIII and XXV of the American Declaration and Article 7(5) of the American Convention; their right to protection against arbitrary arrest under Article XXV of the Declaration; their right to due process of law under Article XXVI of the American Declaration; and their right to judicial protection under Article 25 of the American Convention. The petition on behalf of Mr. Serrette also alleges a violation of his right to a fair trial under Article 8(1) and 8(2)(c)(d) and (f) of the American Convention. 6. The petitioners also submit that the alleged victims have exhausted all effective and available domestic remedies and that they are being denied access to any effective remedy under domestic law with regard to the complaints raised in the petition. 7. As of the date of this report, the Inter-American Commission has not received substantive observations from the State on the petitions presented on behalf of the alleged victims. 8. 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 Inter-American Commission has decided to admit the claims alleged in the present petitions pertaining to Articles I, II, XVIII, XXV and XXVI of the American Declaration and Articles 1(1), 2, 4, 5, 7(5) and 8(1) and 25 of the American Convention; to continue with the analysis of the merits of the case; to transmit the report to the parties; and to publish the report and include it in its Annual Report to the General Assembly of the Organization of American States. II PROCEEDINGS BEFORE THE COMMISSION 9. Following receipt of the petitions, the Inter-American Commission exchanged correspondence with the petitioners concerning their request for precautionary measures. Thereafter, the IACHR transmitted the pertinent parts of the petitions to the State with a request for observations to be submitted within two months. By the same communications, the IACHR issued precautionary measures in favor of the alleged victims. The Inter-American Commission also decided to schedule a hearing during its 123rd regular period of sessions, but this hearing was subsequently cancelled at the request of the petitioners. The State acknowledged receipt of the communications, but did not submit any observation on the admissibility or the merits of the petitions, or on the requests for precautionary measures. 10. The petitioners subsequently presented further submissions to the IACHR, the pertinent parts of which were transmitted to the State, with a request to provide observations. The Inter-American Commission has received no observation from the State. III POSITIONS OF THE PARTIES A. Position of the petitioners 11. According to the petitions, Mr. Bissoon was arrested on December 1, 1995 and charged with the murder of Leslie-Ann Ramsey, while Mr. Serrette was arrested on October 13, 1998, for the murders of his wife, Florence Serrette and his son, Shanie Serrette, which occurred on October 9, 1998. The trials of Mr. Bissoon and Mr. Serrette started respectively on October 8, 1998 and May 15, 2001. Mr. Bissoon was convicted of murder on October 29, 1999, and sentenced to a mandatory death penalty by the High Court of Trinidad & Tobago. On May 21, 2001, Mr. Serrette was convicted of the murder of his son and the manslaughter of his wife. 12. Mr. Bissoon and Mr. Serrette both appealed against their convictions and sentences, but the Court of Appeal of Trinidad and Tobago dismissed their appeals and affirmed their convictions, respectively on May 26, 2000 and January 23, 2002. Both of them subsequently sought Special Leave to Appeal as a Poor Person to the JCPC. Following hearings which took place, respectively, for Mr. Bissoon on February 28, 2005, and for Mr. Serrette on December 13, 2004, their appeals were dismissed. Following constitutional proceedings, as will be further detailed below, Messrs. Bissoon’s and Serrette’s death sentences were subsequently commuted to life imprisonment on August 15, 2008. The petitioners underscore that the late commutation of the death sentences does not alter the substance of the alleged breaches for the period Mr. Bissoon and Mr. Serrette were on death row. 13. In relation to the admissibility of the petition before the Inter-American Commission, the petitioners submit that Mr. Bissoon and Mr. Serrette have exhausted all available and effective domestic remedies, when their petitions for special leave to appeal as a poor person were dismissed. The petitioners state that Messrs. Serrette and Bissoon are indigent and do not have access to legal aid to bring a constitutional motion in respect of the specific issues raised in the petitions and are thus being denied access to a legal remedy to address these complaints. They contend that the United Nations Human Rights Committee has consistently rejected the notion that a petitioner under the Optional Protocol to the International Covenant on Civil and Political Rights must pursue a constitutional motion before the Supreme Constitutional Court in order to exhaust domestic remedies. The petitioners argue that the same reasoning ought to be valid for applications under the American Declaration. On that basis, the petitioners submit that Mr. Bissoon and Mr. Serrette satisfy the requirements of Article 31(2)(a) and (b) of the IACHR’s Rules of Procedure. 14. The petitioners underscore that the constitutional motion, joined by the alleged victims in 2005, and which culminated in August 2008 in the commutation of the death sentence of Messrs. Bissoon and Serrette, contested strictly the constitutionality of executing the alleged victims and therefore, did not encompass the arguments or subject matter of the petitions. 15. The petitioners recognize that Trinidad & Tobago denounced the American Convention on May 26, 1998 and that this denunciation took effect on May 26, 1999. Notwithstanding, the petitioners contend that the IACHR is competent to consider the alleged violations of the American Convention for those facts which occurred before the effective date of Trinidad and Tobago’s denunciation. The petitioners otherwise rely on the American Declaration to ground the IACHR’s competence to consider the complaints contained in the petition. 16. With respect to the merits of their complaints against the State, the petitioners’ complaint focuses on three related themes: delay in commutation of the alleged victims’ death sentences; violations of due process; and conditions of pre- and post-trial detention. Alleged delay in commutation of the alleged victims’ sentences 17. Firstly, the petitioners contend that the alleged victims were entitled, since 2003, to have their death sentences commuted on the strength of applicable case law emanating from the JCPC. This case law includes the Cases of Roodal, Matthews and Pratt & Morgan. In this regard, the petitioners maintain that: a. On November 20, 2003, the JCPC held in Roodal that Trinidad & Tobagos...