Damian Thomas v. Jamaica

• CCPR

International Covenant on Civil and Political Rights: Articles 7, 10 paragraphs 1, 2 and 3, 14 and 24

Optional Protocol to the International Covenant on Civil and Political Rights: Article 1

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The author is Damian Thomas, a Jamaican national, born on 21 November 1980 (16 years old at the time the communication was submitted).

The author was arrested on 9 May 1995 and convicted on 3 May 1996. On 5 May 1996 he was placed in the General Penitentiary, Kingston. The author submitted further that he was 15 years old when he was arrested. He was brought before the Gun Court for two murder allegations but only tried on one at the Home Circuit Court, convicted and sentenced to be detained “during her Majesty’ pleasure”.

While at the General Penitentiary, the author wrote to the Commissioner for Prisons requesting that he be removed from the adult prison. However, when the author was moved he was transferred to the St. Catherine District Prison, once again among adults. The author claimed that he was being held in a prison with adult inmates in violation of the Covenant.

While no articles of the Covenant were specifically invoked, the communication appeared to raise issues under Articles 7 (prohibition of torture or cruel, inhuman or degrading treatment or punishment), 10 paragraphs 1 (dignity of persons deprived of liberty), 2 (treatment of accused juvenile persons) and 3 (juvenile offenders to be segregated from adults; treatment appropriate to their age), 14 (right to justice and fair trial) and 24 (right of the child).

On 23 March 1998, the State party submitted that the circumstances under which the author was being held were unclear and required the author to provide information on the offence for which he was being convicted, as well as other relevant information, e.g. how old was he at the time of his sentence and whether the judicial authorities were made aware of his age. The State party undertook to investigate the circumstances of the author’s detention and to advise the Committee as soon as the results were available.

On 11 May 1998, the author submitted further information, as in the facts above and added that since he had been in detention he had been beaten often by warders. He referred to several incidents; one on 8 November 1996, where he was kicked by several warders. On 20 March 1997 a warden boxed him round the ears and threatened him. On 16 December 1997 he was thumped on the back and beaten while taking him to the overseer’s office. On 20 July 1997, he was beaten by several warders including a Mr. Gardener allegedly because the author was from the same area where the warden’s aunt had been killed.

These new allegations were transmitted to the State party with a request that any comments be submitted to the Committee before 30 January 1999, since the case would be put before the Committee at its 65th session. No response was received from the State party.

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Consideration of admissibility

The Committee found that the communication was admissible in part.

The Committee was of the view that the information in the communication was not sufficiently detailed to enable the Committee, at this stage, to consider any issue under Article 14. The Committee further noted that the allegations concerning assault of the author in prison were transmitted to the State party after Jamaica’s denunciation of the Optional Protocol came into force on 23 January 1998. Consequently, the Committee considered that those claims were inadmissible under Article 1 of the Optional Protocol (competence to receive and consider communications).

As to the allegations concerning the age, name, date of arrest and conviction of author, and the prison in which he had been detained, the Committee held they were admissible.

Consideration of the merits

The Committee was of the view that the facts before it disclosed a violation of Articles 10 paragraphs 2 (treatment of accused juvenile persons) and 3 (juvenile offenders to be segregated from adults; treatment appropriate to their age) and 24 (rights of the child) of the Covenant.

The Committee considered that it was incumbent upon the State party where a complaint such as this was submitted to it in respect of a serving prisoner, to verify whether that prisoner was, or had at any relevant stage, been a child. The Committee considered that the State party had failed to discharge its obligations under the Covenant in respect of the author, in so far as he had been kept among adult prisoners when still a child, and consequently, found that there had been a violation of Article 10 paragraphs 2 and 3. The Committee further observed that the facts also constituted a violation of Article 24 of the Covenant, since the State party had failed to provide to the author such measures of protection as were required by his status as a minor.

The State party was under an obligation to provide the author with an effective remedy, entailing his placement in a juvenile institution, separated from adult prisoners if Jamaican legislation authorised it, and including compensation for his non segregation from adult prisoners while a child. The State party was obliged to ensure that similar violations did not occur in the future.

A dissenting view from one Committee member noted that in the complaint, the author specifically listed the names and dates of his beatings in the prison. Although the State party denounced the Optional Protocol, a measure which took effect on 23 January 1998, the events described in the author's complaint occurred before that date and should be handled in the same manner as the original complaint. The terms of the Optional Protocol therefore continued to apply to the communication, as provided in Article 12 paragraph 2 thereof (denunciation without prejudice to any communication submitted under Article 2 before the effective date of denunciation). Furthermore, the State party had not fulfilled its obligation to inform the Committee of whether the prison regime and the treatment suffered by the person deprived of his liberty complied with the terms of Article 10 of the Covenant. For all these reasons, he considered that the treatment suffered by the author and the beatings he received in St. Catherine's District Prison constituted violations of Article 10 paragraph 1 and 7 of the Covenant.