Report No. 153 (2010) IACHR. Petition No. 43-05 (Trinidad y Tobago)

• Court: Inter-American Comission of Human Rights
• Year: 2010
• Petition Number: 43-05
• Report Number: 153
• Respondent State: Trinidad & Tobago
• Case Type: Admissibility
• Alleged Victim: Haroon Khan

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REPORT Nº 153/10

PETITION 43-05

ADMISSIBILITY

HAROON KHAN

TRINIDAD AND TOBAGO

November 1, 2010

1. SUMMARY

1. On January 19, 2005, the Inter-American Commission on Human Rights (the “Inter-American Commission” or the “IACHR”) received a petition from R., Jones and Walker (the “petitioners”) against the S. of T.a.T. (“T. & Tobago” or the “S.”). The petition was presented on behalf of H.K. (“Mr. K.”, or the “alleged victim”), an inmate at the G.G.P., Port of Spain, T.&.T..

2. The petition indicates that Mr. K. was arrested on October 10, 1998, subsequently tried and convicted for the crime of murder under S. 2A of the Criminal Law Act, and sentenced to the mandatory death penalty on May 18, 2000. Mr. K.’s subsequent appeal to the High Court of T. & Tobago was dismissed on January 30, 2001. The Judicial Committee of the Privy Council (the “JCPC”) later confirmed M.K.’s conviction, but upheld his appeal on sentence on November 20, 2003. The JCPC quashed his death sentence, on the basis that the mandatory death penalty was unconstitutional, and ordered that he be re-sentenced. H., the petitioners submit that as of December 3, 2008, M.K. has still not appeared before a court for re-sentencing.

3. The petitioners allege violations of due process and fair trial; undue delay before re-sentencing; and inhumane conditions of detention. T. recognize that T. & Tobago’s denunciation of the American Convention on Human Rights (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 the S.’s denunciation. The petitioners otherwise rely on the American Declaration of the Rights and Duties of Man (the “American Declaration”) to ground the IACHR’s competence to consider the claims of the petition. U., they allege that the S. violated M.K.’s right to humane treatment and to a fair trial, under Articles 5 and 8 of the American Convention; as well as his right to fair trial, protection from arbitrary arrest and due process of law, under A.X., XXV, and XXVI of the American Declaration. The petitioners also submit that the alleged victim has exhausted all effective and available domestic remedies with respect to the conduct of this trial, and that he is being denied access to any effective remedy under domestic law with regard to the other complaints raised in the petition.

4. As of the date of this report, the IACHR has not received observations from the S. regarding the petition presented on behalf of Mr. K..

5. As set forth in this report, having examined the contentions of the petitioners on admissibility --in the absence of any contentions from the S.-- and without prejudging the merits of the matter, the IACHR concludes that the case is admissible with respect to the alleged undue delay before re-sentencing, related questions of due process, and with respect to the presumed detention conditions, as it meets the requirements provided in Articles 31 to 34 of its Rules of Procedure. B. on the foregoing, the Inter-American Commission decides to notify the parties of its decision and to continue with its analysis of the merits as regards alleged violations of Articles 1.1, 2 and 5 of the American Convention and A.X., XXV and XXVI of the American Declaration; to publish this report; and to include it in its Annual R. to the General Assembly of the OAS.

2. PROCEEDINGS BEFORE THE IACHR

6. Following receipt of the petition, the IACHR transmitted its pertinent parts to the S. on J. 27, 2005, with a request for observations to be submitted within two months. By note of J. 5, 2005, the S. acknowledged receipt, but offered no observations on the petition. Between September 2005 and October 2005, the Inter-American Commission exchanged correspondence with the parties with regard to the petitioners’ request for a hearing during the IACHR’s 123^rd regular period of sessions, which was later cancelled, at their request.

7. The petitioners submitted additional updated information on December 3, 2008, the pertinent parts of which were transmitted to the S. on January 26, 2009, with a request that it submit its observations on the matter within a month. At the time of this report, the S. has not responded to this request for observations.

3. POSITIONS OF THE PARTIES

1. Position of the petitioners

8. The petitioners state that H.K. was arrested on October 10, 1998 and charged jointly with three other persons for the murder of Mr. L.H.Y.. This murder occurred in the course of a robbery in which Mr. K. was accused of participating along with three co-assailants. M.K. was tried from May 4 to 18, 2000. A. he purportedly presented a defense of alibi, claiming that he was at home, building a shed with his father at the moment of the crime, on the basis of two confessions --one verbal and one written-- as well as the testimony of one of the co-assailants, M.K. was convicted of murder and sentenced to T. & Tobago’s mandatory death penalty (the “murder/felony rule”).¹ Mr. K. was the only one of the co-accused who was convicted for murder; according to the petition, two of the co-accused pleaded guilty to manslaughter during a joint trial, while the fourth was granted immunity from prosecution in exchange for giving evidence against the three others. The petition indicates that M.K.’s subsequent appeal to the Court of Appeal of T. & Tobago was heard and dismissed on January 30, 2001.

9. The petition further states that on December 11, 2002, the JCPC dismissed M.K.’s appeal on his conviction, but granted him leave to appeal his sentence, on the issue of the constitutionality of the mandatory death penalty as set by the murder/felony rule. On November 20, 2003, M.K.’s appeal was upheld and the JCPC accordingly quashed the sentence of death and remitted his matter to the High Court to pass an appropriate sentence, ruling that the mandatory death penalty was unconstitutional.² The petition indicates that Mr. K. was then removed from death row; however, as of 2009, he had not yet benefited from the ordered re-sentencing hearing before the High Court and is still waiting.

10. The petitioners note that M.K.’s appeal before the JCPC was heard at the same time as the case of Roodal v. T. & Tobago,³ which also challenged the constitutionality of the S.’s mandatory death penalty law (murder/felony rule), and in which the JCPC reached the same conclusion (the “Roodal decision”). H., the petitioners underscore that this conclusion was later overturned in Matthews v. T. & Tobago (the “Matthews decision”),⁴ in which the JCPC held that the S.’s mandatory death penalty predated the Constitution and was therefore immune from constitutional challenge. In this same decision the JCPC ruled, however, that all persons on death row at the date of the Matthews decision should have their sentences commuted to life imprisonment on the reasoning that such persons would have reasonably expected a review of their death sentences following the Roodal decision and that it would be cruel to frustrate that expectation of a review and to execute them in those circumstances.

11. With respect to the merits of their complaints against the S., the petition focuses on three aspects: the conduct of Mr. K.’s arrest and trial and related alleged violations of due process and fair trial; the alleged undue delay in obtaining re-sentencing in accordance with the JCPC decision; and the conditions of Mr. K.’s pre and post-trial detention.

12. With respect to Mr. K.’s arrest and the conduct of his trial, the petitioners allege the following:

- Upon M.K.’s arrest, his wife was also arrested for no reason; during his first interrogation, M.K. was assaulted by a police officer and signed a piece of paper which he was told would allow the release of his wife but was in fact a confession, in violation of Articles 5 and 8 of the American Convention and XXVI of the American Declaration;

- When he was in police custody Mr. K. asked to speak to a lawyer but was told there was no need, in violation of Article XXVI of the American Declaration;

- The period between the time he was arrested and the time he was tried (1 year and 7 months, from October 1998 until May 2000) without any reason justifying this long time period, constitutes a violation of his right to a fair and expeditious trial, under Articles 8 of the American Convention and XXV of the American Declaration;

- By failing to accord him adequate time and means for the preparation of his defense and by failing to ensure that he would be assisted by the counsel of his choice,⁵ the S. violated Articles 8.2 of the American Convention and XVIII of the American Declaration;

- The fact that two of M.K.’s co-accused pleaded guilty before the same...