Court/Judicial body:
High Court of the Supreme Court of Judicature
Date:
June 17, 2011
CRC Provisions:
Article 2 (Non-discrimination)
Article 3 (Best interests of the child)
Article 37 (Torture and deprivation of liberty)
Article 40 (Administration of juvenile justice)
Other international provisions:
International Covenant on Civil and Political Rights
Convention Against Torture and Other Inhuman or Degrading Treatment or Punishment
Domestic provisions:
Constitution of Guyana, Article 139
Constitution of Guyana, Article 141 (right not to be subjected to torture) Constitution of Guyana, Article 153
Case summary
Background:
A 14 year-old boy was arrested in his home and taken into police custody in connection with an investigation of an alleged murder. He was denied permission to speak with his parents and held overnight in a dark and smelly cell where he slept on the concrete floor in only his underpants. The following night he was interrogated by various officers, beaten with a piece of wood, lashed with a padlock, “karate chopped” in his throat and forced to provide information. His genitals were then soaked in alcohol and set on fire. The boy’s mother filed this lawsuit on his behalf seeking monetary damages and a declaration that his rights had been violated.
Issue and resolution:
Torture, cruel and inhuman treatment; deprivation of liberty. The Court held that the pain inflicted on the child by the police amounted to torture, cruel and inhuman treatment.
Court reasoning:
The Court carefully examined the applicable provisions of Guyanese law, including those incorporating international human rights law, and held that the boy’s rights had been severely violated. Taking account of Articles 37 and 40 of the CRC, the Court held that his detention was unlawful as he had been detained for more than 72 hours and no safeguards were put in place considering he was a child and he had suffered physical pain. Furthermore, they found that he had suffered torture, cruel and inhuman treatment by the police. This violation was found to be particularly severe considering his age. His treatment by the police amounted to a violation of his fundamental rights under Articles 139 (right to personal liberty) and 141 of the Constitution (right not to be subjected to torture). Therefore, the Court explained that a substantial award was justified so that the State and the other parties involved would be “made aware of the importance of upholding the fundamental rights provisions, the gravity of this case and the importance of their responsibilities.”
Excerpt citing CRC and other relevant human rights
Findings on the Affidavits
“While at age 14 yrs plus Thomas can be considered a juvenile or a young person under the Juvenile Offenders Act Cap. 10:03, under the Constitution which incorporates the Convention on the Rights of the Child (CRC) and in Guyana, whether legislatively or otherwise, it is generally recognized that a child is a person who is under the age of 18 yrs. The Guyana Police Force can be considered to be a public institution and therefore it is specifically mandated to uphold the best interests of children and in this case had to uphold the best interests of Thomas as a child in custody. Apart from being a well-established common law and now constitutional principle pursuant to art 38B quoted at the commencement of this decision, the best interests of the child is a human rights principle which is meant to safeguard the welfare of children. The CRC to which Guyana is a signatory, provides in Article 3 (1) that –
‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ * * *
Legal Principles Applied
“Importantly, art 39 (2) is clear in its mandate to the courts. It states:
‘(2) In the interpretation of the fundamental rights provisions in this Constitution a court shall pay due regard to international law, international conventions, covenants and charters bearing on human rights.’ (Emphases mine.)
In addition, Article 154A (1) of the Constitution of Guyana provides that –
‘(1) Subject to paragraphs (3) and (6) every person, as contemplated by the respective international treaties set out in the Fourth Schedule to which Guyana has acceded is end to the human rights enshrined in the said international treaties, and such rights shall be respected and upheld by the executive, legislature, judiciary and all organs and agencies of Government and, where applicable to them, by all natural and legal persons and shall be enforceable in the manner hereinafter prescribed.’ (Emphasis mine.)
The Convention on the Rights of the Child (CRC), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Inhuman or Degrading Treatment or Punishment (Convention Against Torture) are three of the seven international treaties to which art 154A refers which are specifically included in the Fourth Schedule of our Constitution and which have a bearing on this case. Article 154A thus enshrines the international human rights norms that require States to respect and ensure respect for human rights.”
* * *
Application of international human rights law
International human rights law requires that the State protects and ensures the protection of the human rights of persons and that impunity must not be tolerated. (See Article 2, ICCPR.) More particularly as regards this case, the CRC in Article 2 provides that “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction . . . .” In this case, while the third and fourth named respondents were charged, to my mind this is not necessarily the extent of State’s responsibility as for instance, the State may accept liability and offer compensation or other alternative redress, including an apology, or a Court can find liability and grant such redress as it deems fit, where civil proceedings are instituted by the victim.
* * *
Unlawful Detention
“As regards my finding that Thomas was unlawfully deprived of his personal liberty as provided for in art 139, a good starting point is the Judges’ Rules which are appended to the High Court Act, Cap. 3:02 which set out how a child is to be treated when taken into custody . . . . In a similar vein, the CRC in Articles 37 (b) states that –
‘(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. …
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action…’
And Article 40 of the CRC inter alia also exhorts that –
‘1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.’
Thomas’ affidavit discloses that he was arrested at his home in the presence of his sister. There is nothing in the affidavits to indicate that Thomas was told what he was being arrested for. Asst Commr Persaud’s affidavit does not indicate whether as required by art 139 (3) he was informed of the reason for his arrest and detention, nor does he state whether as provided for in art 139 (4) Thomas was arrested on reasonable suspicion of his having committed a criminal offence. Mr. Persaud merely stated that he was arrested pursuant to investigations being conducted into the murder of Ramenauth Bisram. There is no indication that any effort was made to ascertain Thomas’ age and whether his parents were available to go to the station that night. There is nothing in the affidavit in answer to indicate any compliance with the direction in the Judges’ Rules regarding the arrest of Thomas. The facts also disclose that the Administrative Direction was not complied with as regards Thomas’ detention. Even though he said he requested that his parents be called this was not done and it was not until 31st October, 2009, that he was able to see his mother, despite her having visited La Grange Police Station on 28th October, 2009 when she left food for him but was not allowed to speak to him. Thomas’ detention from 27th – 31st October, 2009 was for a period in excess of 72 hrs. There is nothing in the affidavit of Asst Commr Persaud to indicate that an extension of time was sought to hold Thomas in detention beyond 72 hours as stipulated in art 139 (4) (outlined above). . . . The continued detention of Thomas despite his injuries and even after the intervention of Mr. Ramjattan and his mother whereby he was not immediately permitted to go to the hospital were therefore unlawful. How it was that the police hoped to keep such a horrendous occurrence under wraps remains a mystery. Thus, the circumstances of Thomas’ arrest, the lack of parental or other independent presence during his interrogation and his prolonged detention in the conditions described and for more than 72 hours, moreso without the necessary safeguards because he was a child, and in the painful physical condition in which he was, have resulted in my conclusion that his detention was unlawful and in violation of art 139.”
* * *
Mistreatment
“I turn now to the matter of the clear evidence of mistreatment of Thomas which resulted in the injuries he sustained. . . . I will also turn to international human rights law for assistance in this regard. . . . The CRC states at Article 37 –
‘(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. …
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. ….’
While there is no medical evidence in this case e.g. an affidavit in support by a medical practitioner who would have examined Thomas, nor is there evidence of any psychological evaluation of him, nor is there evidence of any prognosis regarding any future physical and psychological trauma or challenges, as I have found, there is sufficient evidence on Thomas’ affidavit, along with the photographs, to permit a finding that he was severely mistreated by police ranks while he was in custody. I think that it is safe to say and would be common sense to come to the view that the burning of Thomas’ body, more particularly the burning of his genitalia, the lifespring of life so to speak, as described and portrayed in the photographs would have been extremely painful and traumatic and that the entire occurrence would continue to have long-lasting physical and psychological effects on him.
The threats, the stripping almost to nakedness, the beatings, the poor state of the place of detention, and added to all of this to have one’s body, more especially one’s genitals burnt in the manner described and portrayed or at all and to be left without proper medical attention for so long, along with the threat to another detainee in his presence to perpetrate the same cruel treatment as administered to Thomas, all clearly provide a picture of gross mistreatment which can only be described as “an aggravated and deliberate form of cruel, inhuman or degrading treatment” which I conclude has proven not only inhuman and degrading treatment but also torture, especially given Thomas’ age. Further, given Thomas’ age and consequential added vulnerability, and that he was being detained by police officers who according to the motto of the Force are to provide ‘Service and Protection’, this entire episode must have caused Thomas and would continue to cause him (and for that matter most likely would have caused and would continue to cause any other reasonable person) serious cruel suffering and psychological trauma. I also specifically find that the treatment of Thomas was degrading, humiliating and debasing as it must have aroused in him fear and anguish, moreso fear of future incapacity. Apart from the third and fourth named respondents, as recounted by Thomas, inhuman and degrading treatment was meted out to him by other members of the Force, and the police surgeon, who came into contact with him. To my mind, by failing to provide him with any medical attention for over a day after he was burnt, the unprofessional medical attention he received, and by failing to permit him to go to hospital for further medical attention for another two days, they displayed a callous indifference, lack of care and an absence of concern for Thomas as a detainee and as a child.
As I said earlier, the facts in this case disclose a horrendous account of torture and inhuman or degrading treatment which ground my decision for finding that there has been a violation of Thomas’ human rights generally to be treated with dignity and respect as a child and as a person. In my opinion, therefore the torture and cruel and inhuman treatment meted out to Thomas has demonstrated and established an absolute and flagrant disregard for his constitutional rights pursuant to art 141.”
* * *
Conclusions on the award of damages
“As parens patriae, this Court could not but uphold the constitutional mandate that the best interests of the child be considered and that the fundamental rights as enshrined in the Constitution of Guyana and the human rights of Twyon Thomas, as a child and as a person, be upheld. To do otherwise would be to violate or be complicit in the violation of Guyana’s human rights obligations as a State to this child and our country’s obligations to uphold the applicable human rights conventions, more especially the Convention on the Rights of the Child, which have been specifically included in our Constitution.” Follow Up: The Attorney General had initially intended to appeal the judgment but he withdrew his appeal and the Government paid the victim 6.5m Guyanese Dollars (approx. US$ 3,000) in compensation, which had been awarded to him by the Court. In addition, the officers involved were separately charged with criminal offences, but they were not found liable after the victim failed to show up in court. They were later removed from the police. CRIN Comments: CRIN believes this decision is consistent with the CRC. The Court correctly applied Articles 37 and 40 of the CRC, which respectively prohibit cruel, inhuman or degrading treatment or punishment of children and stipulates that children in conflict with the law should be treated in a manner consistent with the promotion of the child’s sense of dignity and worth.
Citation:
2010 No. 12-M Demerara
Link to Full Judgement:
Available on request.
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.